73 Fla. 986 | Fla. | 1917
The defendant in .error, hereinafter referred to as the plaintiff, brought suit ¿gainst the Charlotte Harbor and Northern Railway Company, hereinafter referred to as the defendant, in the Circuit Court for DeSoto County for damages to an orange grove alleged to have been caused by a fire which the defendant negligently set out and caused to be started by carelessly allowing sparks to be emitted from the smokestack of one of its engines and coals of fire to be dropped from the engine’s ash pan. The original declaration contained five counts; it was amended by adding two counts numbered six and seven, and amended again by adding two more counts numbered eight and nine. DemÜrrers to the first seven counts were overruled. The defendant pleaded not guilty; that the plaintiff was not the owner of the property at the time it was alleged to have, been injured, and that the plaintiff contributed to the damage complained of by carelessly and negligently failing to keep, his premises free from inflammable material, and by allowing his premises to become overgrown with grass and weeds of such character as to be highly inflammable. There was a trial upon the issues made by these pleas and a verdict for the plaintiff in the sum of four thousand dollars, upon which judgment was entered, and the defendant took a writ on error.
We will not discuss the assignments of error which question the sufficiency of the declaration or the correctness of the court’s refusal to give certain instructions requested by the defendant, or those which question the correctness, of those given upon the plaintiff’s request, because after having carefully read the evidence as it is presented to us in the bill of exceptions, we think it was the court’s duty to have granted the motion for.a new trial. The declaration is framed upon several theories: One is that the defendant allowed grass and debris to accumulate upon its right of way and that coals of fire dropping from the engine’s ash pan and emitted from the smokestack ignited the grass and debris, causing a fire which burnt the plaintiff’s grove; another was that the engine was equipped with an improper spark arrester which allowed sparks to be emitted therefrom which fell on the grass and debris on the. right of way, causing the fire; another that the coals of fire and sparks fell upon the plaintiff’s uncultivated land and caused the fire, and that the engine was so carelessly and negligently managed and operated that fire escaped from the locomotive and set fire to the plaintiff’s orange grove.
The evidence shows that the plaintiff’s orange grove was located on a tract of land, adjacent to the defendant’s
We are unable to discover in the evidence presented in this record any fact connecting the fire which occurred on the plaintiff’s land with the throwing of sparks from the
The court erred in denying the motion for a new trial, and for that reason the judgment is reversed.
Browne, C. J., and Taylor, Shackleford, Whitfield and'Ellis, JJ., concur.