4 Div. 131. | Ala. Ct. App. | Mar 16, 1926
This appeal is from a verdict and judgment for damage by fire alleged to have been caused by the negligence of appellant.
The first insistence of error is that the court erred in admitting in evidence, over the objection and exception of appellant, a list or memorandum of the articles destroyed by the fire. Appellee, plaintiff, testified that he made the memorandum, and "knew that said stuff was in there." Fairly interpreted, this can mean nothing else than that the witness knew the memorandum to be correct. The rule is that, if the witness testifies that he knows the contents of the memorandum, made by himself, and knows it to be correct, then both the memorandum and the testimony of the witness is legal evidence. Singleton et al. v. Doe, etc., 63 So. 949" court="Ala." date_filed="1913-12-18" href="https://app.midpage.ai/document/singleton-v-doe-ex-dem-smith-7366876?utm_source=webapp" opinion_id="7366876">63 So. 949,
It is further insisted for the appellant that the evidence of negligence was insufficient to submit the case to the jury; thus entitling defendant to the requested affirmative charge. This question would be a serious one but for the positive testimony of plaintiff as to the condition of defendant's right of way at the point where the fire started. The evidence is that the fire started or was first discovered, soon after the passage of one of defendant's trains. Plaintiff testified that —
"At the particular place where the fire started there was on the right of way pine straw and weeds and pines; weeds that had been cut down and were very dry, they were cut down by the section foreman, and this was very inflammable, about as inflammable as could be."
It has been held by this court that to permit such a condition to exist is negligence on the part of the railroad. The exact question is fully discussed and the law clearly stated in the case of Southern Railway Co. v. Dickens, 49 So. 766" court="Ala." date_filed="1909-05-24" href="https://app.midpage.ai/document/southern-railway-co-v-dickens-7364243?utm_source=webapp" opinion_id="7364243">49 So. 766,
If the jury believed the testimony of plaintiff relative to the condition of the right of way, plaintiff was entitled to recover, regardless of the skill and care used in the construction and maintenance of the engine, since it is a matter of common knowledge that fire will escape from the best equipped and most carefully operated locomotive so as to ignite very combustible material allowed to accumulate near the track on the right of way. It follows that the case was properly submitted to the jury.
Numerous requested charges were refused by the court, but the principles of law embodied in each of these charges were fairly and substantially covered by the oral charge *281 of the court, or by written charges given at the request of the defendant.
There is no error, and the Judgment of the circuit court is affirmed.
Affirmed.