Blue v. Aberdeen & West End Railroad

21 S.E. 299 | N.C. | 1895

The plaintiff, in his complaint, claims damages against the defendant for negligently permitting fire to be communicated from its engines or property to the lands adjoining its railroad and right of way, by which said fire and the spread and the extension thereof the plaintiff's property was destroyed and damaged. It appears from the case on appeal that the plaintiff admitted on the trial that the engine of the defendant company was in good condition and had a proper spark arrester; and that the only claim of negligence made by the plaintiff was upon the ground of rubbish on the right-of-way or upon or near the road-bed to which fire was communicated. From these admissions it would seem that it was only necessary to have submitted that phase of the case to the jury. Upon this view his Honor charged: "That if the jury find from the evidence that the defendant company permitted dead grass and straw, dried-up leaves and an accumulation of combustible matter to exist on its right-of-way so near the track as to (959) catch fire from the engine, and it did catch from the engine and the fire spread across the lands of another person to plaintiff's lands, defendant company would be liable to plaintiff for damages sustained. There is no evidence of contributory negligence upon the part of plaintiff." There is no error here, and no exception made by the defendant. But the court, at the request of the defendant, made the following special charge: "That the defendant could only be required to provide against usual and ordinary weather, and if the jury should find that the wind which caused the escape of the sparks and fire was unusual and extraordinary, and but for the unusual and extraordinary character of the wind the sparks and fire would not have escaped from defendant's engine and would not have communicated to plaintiff's premises, the defendant would not be guilty of negligence and plaintiff could not recover."

This instruction must have been given to cover another view presented to the jury, that is, that the fire might have been communicated directly to the plaintiff's lands from sparks and fire blown from the defendant's engine.

Plaintiff excepted to the special instructions and this raises the only point for decision here. While this instruction seems to be unnecessary to have been given upon the case first presented, yet after it was made it may have influenced the jury and have diverted their attention from the very plain charge theretofore made by his Honor. As to the nature and kind of the winds the testimony was variable and conflicting. Some of the witnesses described it in such general terms as "wind blowing in gusts, hard wind, blowing hard, wind blowing very hard, very windy, unusual wind, unusually and extraordinarily windy." As to the witness who testified to particulars, some said "wind would have blown hat fifty yards, sparks further"; "sparks from stack would have blown fifty or seventy-five yards"; "wind would have (960) blown sparks one hundred or two hundred yards." We think the exception is well taken. The instruction is all right so far as it goes, but the language used is too general. It contains no explanation to the jury as to the manner in which they were asked to consider the testimony, whether by comparison with other winds in the same climate, or other seasons of the year; or whether to be taken in connection with that testimony which went into the particulars of the wind, or to be considered as independent proof.

The words "unusual and extraordinary," as in common use, very often are exaggerations of speech, and in many cases, if properly inquired into and explained, would be found not to be synonymous with "unnatural" and "unexpected." And further, the testimony in its particulars does not disclose any unnatural or unexpected wind. We think that his Honor should have so explained the meaning of the words "unusual and extraordinary" in conjunction with the particular testimony offered, as to have presented the question whether or not this wind could reasonably have been anticipated and expected by the defendant in the climate and season and section of country. InEmry v. R. R., 102 N.C. 226, the judge below instructed the jury upon the question of negligence that "it was the duty of defendant to have constructed its culvert so it would carry off the stream under all ordinary circumstances and the usual course of nature, even to the extent of such heavy rains as are ordinarily expected. If the defendant so constructed the culvert that it was not sufficient to carry off the water of the stream under ordinary circumstances (and by ordinary circumstances is meant the usual rainfall), even if such heavy rains are occasional, and by reason of an insufficient culvert the plaintiff's land was overflowed, the answer to the first issue (Has the defendant negligently (961) ponded water back upon the plaintiff's land?) should be yes, unless the defendant has acquired the right to pond water on the plaintiff's land." Justice Avery, in delivering the opinion, in sustaining the ruling of the trial judge, went on to say: "His Honor, in addition to the language quoted from his charge, told the jury that the defendant was `not negligent if the overflow was the result of extraordinary and unusual rainfall.'" It is not to be inferred, however, that the additional words "extraordinary and unusual" alone would have been a sufficient charge to the jury on the question of negligence.

There was error in the instruction given, and there must be a new trial.

New Trial.

Cited: Russell v. Monroe, ante, 730; Tankard v. R. R., 117 N.C. 563;Tillett v. R. R., 118 N.C. 1044; Little v. R. R., ib., 1078; Purcell v.R. R., 119 N.C. 738; Little v. R. R., ib., 778; Williams v. R. R., ib., 750.