Illinois Central Railroad v. Thomas

Smith, C. J., delivered the opinion of the court. This is an appeal from a judgment rendered in the court below for damages sustained by appellee while endeavoring to extinguish a fire alleged to, and found by the jury to, have been set out by one of appellant’s trains. Appellee was the owner of a small tract of land adjoining appellant’s right of way on which was situated two brick kilns, several dry sheds, and an [547] •office building, all of which was his (appellee’s) property. The land north of these dry sheds adjoining appellant’s right of way was covered with tall, dry grass. No 'grass seems to have been on the right of way. On the afternoon of March 2, 1912, immediately after the passing of one of appellant’s southbound passenger trains, this grass was discovered by several parties working in that vicinity to be on fire at the junction of the right of way with the abutting property and was being blown by a high wind toward these dry sheds. No fire was seen in that vicinity prior to the passing of this train. Appellee was immediately notified, and, together with several other persons, he immediately began trying to beat out the fire with pine tops, wet cloths, etc. It seems that appellee and his assistants failed to extinguish the fire before it reached the dry sheds by fighting it from the rear, his testimony on that point being as follows: “A. I fought the fire in the hollow towards the railroad until I saw there would be no chance to whip it out there, aDd I went around and got under the shed, with the idea that when it burned up and died down, or the wind would blow it back, I could run in there and fight it, and I did so. As the current of air carried the flames in front of me, I run in at that time and commenced fighting, and the wind blew, the fire on me, and in trying to get out, I struck a post in the ditch, and I was blinded, and the flame come on me again, and I run under the shed. Q. State what damage, if any, was done. A. My eyes were burned, and this side of my face and nose.” Another portion of his testimony indicates that when the flame was blown into his face he closed his eyes, and while his face and nose were blistered thereby, his eyes would probably not have been burned had he not been forced to open them when he struck the post. [548] His injuries incapacitated Mm to some extent in attending to Ms business for about two weeks, during wMeb time he suffered some pain. With reference to the injury to his eyes, Ms testimony was as follows: “A. Well, my eyes are, to some extent, inflamed yet, because an ordinary light hurts them, and wherever I look — it doesn’t matter what it is — there is a blurred spot before my eyes, which hinders me from seeing; and I’m all the time trying to place my eyes to get to see better, but it doesn’t do any good. It’s merely a sensation to want to see better, and I am trying to see better. Q. Were your eyes that way before this fire? A. No, sir.” The two assignments of error argued are: First, that the court below erred in not. granting appellant a peremptory instruction; and, second, that the court erred in granting the one instruction granted appellee. It is sought to uphold the first assignment of error upon two grounds first, there is no evidence from which the jury could infer that the fire was set out by appellant’s train, and second, that the setting out of the fire was not the proximate cause of appellee’s injury. On the evidence we think the question of whether or not the fire was set out by this train was for the jury, and if it was set out by this train, then under section 1985 of the Code, negligence on appellant’s part in this connection must be presumed, there being no evidence disclosing the facts and circumstances under wMch the fire was in fact set out. It is not necessary that appellant’s negligence should have been the sole proximate cause of appellee’s injury in order that it may be liable for damages resulting therefrom, and if authority be desired for the holding that the setting out of the fire was a proximate cause of appellee’s injury, it can be found in Railroad Co. v. Siler, 229 Ill. 390, 82 N. E. 362. 15 [549] L. R. A. (N. S.) 819, 11 Ann. Cas. 368; Liming v. Railroad Co., 81 Iowa, 246, 47 N. W. 66; Telephone Co. v. Woodham, 99 Miss. 318, 54 So. 890; and Railroad Co. v. Smith, 103 Miss. 150, 60 So. 73. Bnt it is said by counsel for appellant that not only was appellee’s injury caused by his own voluntary act in attempting to extinguish the fire, but that in so doing he “did. not adopt the usual and reasonable method of fighting this fire. But, on the contrary, he adopted a method so unusual and so exceedingly dangerous that it amounted to utter recklessness, and he adopted this method knowing the danger he was running and manifesting a willingness to assume the risk.” Conceding, but solely for the purpose of the argument, that appellee was guilty of negligence in the manner in which he attempted to extinguish the fire, appellant is not, under our concurrent negligence statute, exonerated from all liability by reason thereof. No error was committed in granting appellee’s instruction. This instruction together with the form in which counsel for appellant in their brief suggest that it should have been given, will be set out by the reporter.