| Ala. | Nov 15, 1900
The complaint was not subject to the demurrer.
The report made to the defendant by its engineer was prima, fade not evidence for either party.—Culver v. Ala. Mid. R. Co., 108 Ala. 330" court="Ala." date_filed="1895-11-15" href="https://app.midpage.ai/document/culver-v-alabama-midland-railway-co-6516309?utm_source=webapp" opinion_id="6516309">108 Ala. 330. That it might have been used to contradict the engineer if he had denied its contents did not bring it within section 1859 of the Code which provides for compelling the production of writing’s “pertinent to the issue.”
. Apparently in giving and refusing instructions to the jury the trial court proceeded on the theory that the fact, if established, that defendant’s engine communicated fire to the plaintiff’s building was sufficient to fix upon the. defendant the charge of negligence conclusively. Such a conception is, in view of the evidence, at variance with principles declared by this court.
In actions of this kind the communication of fire to the property of another by an engine of a defendant railroad company is, when nothing appears to the contrary, presumed to have been the result of negligence on the part of the defendant. The presumption so" arising is not a conclusive one so as to preclude the defendant' to rebut it, nor does it take the place of actual evidence of negligence further than to cast upon the defendant the burden of showing by evidence that at the time of the occurrence it was in the exercise of ordinary care in respect to the construction, equipment and management- of the engine. When by proof it has so repelled the presumption the burden’ shifts to the plaintiff, who must go forward anew with actual evi-
The effect spark arresting devices have in diminishing the flight of spark® is not a matter coming within ordinary experience and observation, and therefore the distance to which fire is communicated, does not of itself furnish evidence that the engine was not well equipped. L. & N. R. R. Co. v. Marbury Lumber Co., supra.
These considerations force the conclusion that there-was error in giving the charge requested' by the plaintiff -and also in -the refusal to give charge 10 requested' by the defendant.
The oral instruction excepted to might have been understood as imputing negligence to- the defendant alone upon the ignition of the building by sparks from the engine at a distance of fifty-six yards.
Witnesses for defendant testified to the proper construction, equipment and management of the engine in question, but the same witnesses gave as their opinion, ’based apparently on the -capacity of good appliances to restrain sparks, that fire could not' have escaped so* far as the plaintiff’s building. Prom such evidence together with the fact, if found, that the building was actually fired by -sparks so escaped, the logical inference would be that the engine was deficient in spark arresting devices, and that in testifying to the efficiency of the particular appliances the witnesses were mistaken. In this condition of the evidence, the question a-s to whether the presumption of negligence, if raised, had been successfully repelled, could not properly have been
The remaining charges requested by defendant were properly refused. Charge 7 is bad in denying that negligence might- be presumed though the fire was caused by escaping sparks. Charge 9 would pretermit inquiry as to management of the engine. Charge 11, which asserts in effect that there was no evidence tending to show a want of proper care, was calculated to confuse the jury and to cause them to ignore the evidential effect of the presumption in establishing negligence as well as some testimony having the same tendency.
The judgment must be reversed and the cause remanded.