54 Tenn. 451 | Tenn. | 1872
delivered the opinion of the Court.
The plaintiff brought this action to recover judgment for the alleged destruction by fire of her house and furniture on the night of the 15th of September, 1870, which she charges were ignited by sparks of fire from the locomotive engine of defendant. The value of the property shown to have been destroyed by the fire, including the building and furniture, and the clothing of herself and her minor children, was about $1,400. The verdict of the jury ascertained her damages to be $1,063, upon which judgment was pronounced, and an appeal in error taken by defendant.
The defendant is an incorporated railroad company, and had constructed its road some years before house of the plaintiff was erected. The building stood upon the south side of the defendant’s road, and distant about thirty yards therefrom. There is no positive testimony as to the fact of ignition, but the question was submitted to the jury upon the circumstantial evidence adduced, and they believed that the fire was occasioned in the manner charged, and have pronounced accordingly. It is shown that at 9:40 p. M., on the night of the fire, two freight trains passed the house of the plaintiff in the village of Hendersonville, and it was observed by persons in the vicinity, that large quantities of sparks were emitted from the smokestacks of the engines, which were borne upon a light wind in the direction of the plaintiff’s house. The building was of wood and roofed with cypress shingles. The family had retired and were asleep at the mo
The inspector testifies that on the evening of the 15th of September, 1870, before the two engines in question left Bowling Green for Nashville, he had carefully inspected the smoke-stack of each, and both were found to be in perfect order; that the locomotives used at that time by the defendant were of the best and most approved class, and only those with all the latest and best improvements attached were used. The smoke-stacks are described as being built with two stacks, an outer and an inner stack; over the inner stack is a cone against which sparks strike as they ascend and are thrown back. Above this cone, and covering the mouth of the outer stack, is a wire netting, known as a spark catcher. This is made very firm so as to prevent the escape of any large sparks. All the locomotives used by defendant
Upon this state of facts, the Court, among other things not excepted to, charged the jury as follows: “If you find from the testimony that the house of the plaintiff was burned, and that it was fired by a brand from a locomotive that was ' then being run upon defendant’s road, you will then look to the testimony and see whether the burning of the house resulted from the carelessness or negligence of the employees of defendant, and if so, your verdict should be for the plaintiff, and the measure of damages would be what it would cost in cash, at the time and place of the burning, to replace the house and each article consumed in it, with interest from that time to the present, if you think proper to allow interest. If the testimony shows that the defendant was running locomotives over it road so constructed as to let brands of large size escape, or if such locomotive was properly constructed, or constructed so as to prevent the escape from its smoke-stack of large brands when in good order, it was so much out of order as to permit the escape of brands that endangered buildings standing within the distance that plaintiff’s house stood from the road, and they continued to run such engine, notwithstanding the danger of setting buildings in the near vicinity of the road on fire, without repair, this would be such carelessness or negligence as would make the company liable for damages if any house should be fired by such locomotive under the circumstances just mentioned. On the other hand, if
It appears that Mary Burke, the plaintiff’s daughter, was living with her mother; that she was a minor, and that her marriage was at hand. The bridal wardrobe purchased by her mother and presented to her, was destroyed in the building. Upon the subject of the plaintiff’s .right to recover in this action the value of her daughter’s clothing, the Court charged as follows: “If the testimony satisfies that Mary Burke, the daughter of the plaintiff, was under age, and was living with the plaintiff as a member of her family, and a part of the property consumed in the burning of the house was owned and claimed by her, she being a minor living with her mother, and subject to her orders and control, the plaintiff would have a right in this action to recover from the defendant the value of such articles.”
Among other instructions substantially given in the foregoing charge, the defendant requested the following,. which were not given: 1, “ If the plaintiff seeks to recover upon the ground of negligence, the burden of the proof of negligence lies on the plaintiff. 2d,
’With respect to the first proposition, — that if the plaintiff seeks to recover upon the ground of negligence, the burden of proof of negligence lies upon the plaintiff, the Court is of opinion that such is not the law as applicable to this kind of case. If the fact be made to appear that the plaintiff’s house was fired by sparks from the defendant’s engine, and that sparks in unusual and dangerous quantities were ejected from the engine on the occasion in question, it is peeuliarily within the power of the defendant to show that it was without fault or negligence of its own. It may be observed that in an action like this the law requires that “ the plaintiff must not only prove that the fire which destroyed her property might have proceeded from the defendant’s engine, but must show
The second proposition, as to the character of the fuel used by the defendant, it seems to us, is given to the jury in a form more favorable to the defendant in that portion of the charge in which no mention is made of the subject of wood or cool as fuel, yet his Honor tells the jury that if the proof shows the defendant had procured for its road locomotives constructed with the latest improvements to prevent the escape of sparks, and that they used such diligence and care in running such locomotives as a prudent man would about his own business or affairs, and sparks did escape from such locomotives and set fire
Upon the third proposition, we have only to say that the plaintiff, in building her house within thirty yards of the defendant’s road, had no right to anticipate any such degree of negligence on the part of the defendant in the exercise of its chartered privileges as would render this litigation necessary. But it has been expressly held that one is not precluded in such cases from a recovery by having placed his buildings in an exposed position. Coop v. Champ. Tram. Co., 1 Denio, 91-99-101; 1 Redf. Rail., 455.
Upon the question of evidence presented, it was held in England that it was proper evidence to go to the jury that the company’s engine had before in passing along the line emitted sparks a sufficient distance to have done the injury in that case, as a means of ascertaining the possibility of the building being fired in the manner alleged. The testimony in that case showed that the danger of emitting sparks is very much increased by overtasking the engine, and that it may be altogether avoided by shutting off the steam in passing a place where there is danger from sparks, or that the danger may be guarded against by mechanical precaution. 1 Redf. Rail., 454.
And in another case where it was claimed that no burning sparks could reach far enough to communicate the fire, it was held competent to show that the same engine using similar fuel emitted sparks reaching a greater distance. Ross v. Boston and Worcester R. R., 6 Allen, 87.
The company, say the Court, should use precaution to prevent fire escaping from their engines, or they will be responsible for the consequences. 28 Ill. R., 9. The proof in such case as to the emission of sparks at other times, is not adduced or allowable in the sense of the res gestee, but merely to illustrate the force with which engines may expel sparks from their smoke-stacks, and in this view we see no objection to it. Shear. & Redf. Neg., ss. 333, 380.
There are two other questions which we will briefly notice. It is said that the charge of the Court as to the proper measure of damages in this case is erroneous.
The Court charged the jury, that “the measure of damages would be just what it would cost in cash at the time and place of the burning to replace the house and each article consumed in it.” We think that this part of the charge was inaccurate, and calculated to produce confusion in the estimate of damages. The better instruction would be that the measure of damages would be the value of he property destroyed at
But, for the error indicated, the judgment is reversed and a new trial awarded.