Alabama & Vicksburg Railway Co. v. Fried

| Miss. | Oct 15, 1902

Terral, J.,

delivered the opinion of the court.

Solomon Fried, doing business under the name of the Sol Fried Company, sued appellant for the burning, through the alleged negligence of its servants, of a large quantity of lint cotton in bales belonging to him and alleged to be worth $2,509.71, and recovered a verdict, under the instructions of the court, which was premptory as to the amount, in the sum of $2,509.

Appellant assigns several grounds of exception to the proceedings had in the case. It especially complains that a memorandum of the fifty-one bales of cotton alleged to have been burned was put in evidence before the jury. The memorandum in question was composed of a copy of the books of the Vicksburg Cotton Press Association, as bailee of said cotton, showing the tag numbers of the fifty-one bales of cotton of appellee received by it on his account, which books of the press association were proven to be correct by the persons who made the entries on the books, and to have been correctly copied into the memorandum laid before the jury. The memorandum, so far as it was taken from the books of the press association, individualized each of the fifty-one bales of cotton which the books showed had not been shipped out and must, therefore, have been burned. The memorandum was also composed of a copy of the books of Fried, which were proven at the mouths of sworn witnesses to be correct, and which showed the weight and grade of cotton of each of the fifty-one bales bailed to the press association, and individualized by its books; and the value of each of said fifty-one bales of cotton, separately and collectively, could be calculated by anyone with knowledge of the market report of the day. It is evident that the memorandum relating to this cotton was not put' in as original evidence, speaking for itself, but as used by the witnesses to refresh their recollection of facts which otherwise might have been forgotten, and was placed before the jury to assist them in the same respect. This course of proceeding was entirely proper, and, if coupled with satisfactory proof of the ignition of the cotton by the engines of appellant, and through the negligence of its servants, afforded proof from which a jury might have found that the value of the cotton was $2,509, which was directly testified to by the witness, Austin. The memorandum, we think, was an important part of the evidence, because without it the difficulty of any witness stating the individuality, weight, and grade of each of these fifty-one bales of cotton would be serious, and his attempt 'to do so would naturally excite a suspicion, of incredulity. That books and memoranda of transactions of every kind, when shown to be correct, may be laid before the jury for their information and assistance, is held, perhaps, by all the authorities. 1 Greenl. Ev., sec. 436 et seq.

2. It is objected to a recovery by the plaintiff below because it alleges him to be guilty of contributory negligence, in suffering his cotton to be stored in a dangerous place. While it is true that the railroad company is presumed to have paid for the right of laying its tracks along Pearl street, yet the owners of the lots abutting Pearl street are not precluded from their use for any purposes for which they are suitable. It merely puts upon the owners the risks arising from the non-negligent use of its railroad by the company operating on the track, and nothing more. The company itself is under a duty of not exposing the property upon the adjacent lots to the risk of fire arising from the negligent operation of its engines. And its duty in this respect is measured by the nature of the property stored upon the adjacent lots as to its inflammability. It isf our opinion that it cannot be said, as a matter of law, that the use of the hospital lot for the temporary storage of cotton was in itself, under the circumstances disclosed by the evidence, contributory negligence. That question should have been left, as by the learned judge it was left, to the jury, especially as it was shown that the compress company used tarpaulins for covering the cotton, and had a watch there day and night, with barrels of water and other facilities for extinguishment of sparks of fire.

3. It appears that appellee had not been able, until the trial had proceeded quite far towards its conclusion, to fix upon what precise engine had emitted the sparks that ignited his cotton, and gave in evidence the emission of sparks by engines, which the evidence on. the part of appellant made it probable were not emitted by the engine whose sparks destroyed the cotton, and a reversal of the judgment is earnestly insisted upon for that cause. But iffibuch evidence was improper, yet other evidence of the emission of sparks in great quantities, and many of them larger than a proper spark arrester would allow to issue through its meshes, was introduced, reasonably sufficient to support the finding of the jury. If the evidence objected to had been excluded, it is hardly probable the jury would have found a different verdict.

The tracing and identification of these fifty-one bales of cotton through the books of Fried.and the books of the press association, both proven to have been correct, and the storing of them upon the hospital lot, where many hundreds of bales of cotton were burned, with proof of all the necessary incidents for arriving at their value, with no contradicting evidence, made the proof quite strong that Fried’s burned cotton was of the value of $2,509, and supported the peremptory instruction in that particular. And the evidence of the' great quantities of sparks emitted from appellant’s engines, many of them as large as the ends of the fingers of the witnesses, blown by a fierce gale directly towards the cotton, generated apparently by the rapid and unlawful rate of speed up the activity of Pearl street, or caused by the want of reasonable care on the part of the servants of appellant in other respects, tends to support the finding of the jury.

4. One witness for plaintiff below testified that when he got to the fire about six or seven bales were.on fire; that it was burning pretty fast, and that the wind was blowing; and that the fire department got with the wind, and threw water on the fire, and knocked fire everywhere, and it then began to burn everywhere; and, upon this brief and sole statement upon this point, appellant insists that the principle of law that, where an injury happens from two efficient causes, the .plaintiff, when suing one only of the wrongdoers, must show the particular part of loss inflicted by him. We think there is not enough of evidence here upon this point to call for the application of the principle invoked.

We find no error inrdhe proceedings, a/nd the judgment must l)e affirmed. ''orean.