136 S.E. 691 | W. Va. | 1927
The railroad company prosecutes error to a judgment of the circuit court based on a verdict of $600.00 awarded plaintiffs in an action for damages to plaintiffs' timber, fence and grass front a fire originating on defendant's right of way from one of its locomotives.
The declaration charges that defendant negligently operated its locomotive equipped with insufficient spark arresters and ash pan, and negligently permitted a large amount of inflammable material, such as brush, weeds, grass and the like, to accumulate and remain on its right of way, which was ignited by fire from the locomotive, and which spread to plaintiffs' land.
The preponderance of the evidence establishes the fact that, at the time and place of the fire, April 8, 1925, there was an accumulation of inflammable material on defendant's right-of-way, and that the fire originated there and was discovered just after defendant's passenger locomotive No. 201, to which two wooden passenger coaches were attached, had passed. The grade was heavy and on a curve where the engines generally labored in pulling the grade. No one saw sparks or fire thrown into the inflammable material on the right-of-way, and as is usual in such fires, plaintiff had to rely on circumstances. As tending to prove that engine 201 spread the fire plaintiff was permitted, over objection, to show that on other previous occasions defendant's engines had caused fires on the right-of-way in that vicinity. These other engines were hauling heavy freight trains, and were of a different type or make, and it was not shown that the circumstances were similar. It was error to permit the introduction of evidence of such other fires, and it should have been excluded.Lafferty v. Lumber Co.,
To rebut the presumption that engine 201 caused the fire, defendant showed that it was equipped with approved spark arresters and ash pan in proper condition, that it was properly operated by its servants who were competent; and, on the theory that it had by such uncontradicted evidence avoided liability for any fire that might have come from that engine, defendant offered instruction No. 2 to the effect that no verdict could be based on defects in the engine equipment. This instruction was refused, and properly so. The negligence causing the fire and damage is not based solely on defective equipment, incompetency of employes, and improper performance of their duties, but is based upon the negligence of defendant in allowing an excess of inflammable material to remain on its right-of-way from which the fire spread to plaintiffs' land. And although its locomotives may be properly equipped, and operated by skilful competent servants, yet if it has negligently allowed accumulation of dangerously combustible matter along its tracks, it will be liable, where the circumstances show that one of its locomotives must have communicated the fire. At least it becomes a question for the jury. Richmond Danville R. R. Co. v. Medley,
Whether defendant allowed inflammable materials to accumulate on its right-of-way on which the fire started, was a vital inquiry in view of clearly proven want of defects in the engine equipment, and proper operation of the engine by competent servants. There was evidence on behalf of defendant that it had caused its right-of-way to be cleared of inflammable material, and that it was free therefrom, and that the fire did not originate on its right-of-way, and defendant's instruction No. 3, to the effect that it was incumbent on plaintiff to show by the preponderance of evidence that the fire originated on its right-of-way before recovery could be had, should have been given; but the substance of this instruction was incorporated in another instruction given by the court on its own initiative, which obviated the error in refusing defendant's instruction No. 3. The instruction initiated and given by the court was designed to cover the law of the case as a whole, including the measure of damage, and will now be considered in relation to the method of ascertaining the extent of plaintiffs' damage.
The declaration charges that plaintiffs owned the land burned over, consisting of about forty acres, five acres in grass and fenced, and thirty-five acres covered with valuable timber, all of which timber, grass and fences were of the value of $3,500.00; and that by reason of defendant's negligence in originating the fire (specifically pleaded) which spread to this land, the timber, grass and fences were wholly destroyed, to plaintiffs' damage of $3,500.00. The damages *102
claimed are not those to the real estate they extend only to the standing timber, the fence and the grass. Evidence of the general damage to the land was improper and inadmissible. The evidence should have been confined to the specific items alleged in the declaration. Stewart v. B. O. R. R. Co.,
In the court's instruction designed to cover the law governing the case as a whole, the jury were told that if they believed from the evidence and circumstances that the fire emanated from defendant's locomotive and was communicated to the inflammable material left by it on its right-of-way and from there to "and burned through plaintiffs' lands," then the jury should find for plaintiffs "and assess their damages at such sums as the jury may believe from all the evidence and all the surrounding circumstances in evidence will fairly and justly compensate them for the injury sustained." By this instruction the jury were told, in substance, that if they found that defendant was negligent in originating the fire, and damage was done to plaintiffs by reason thereof, then they should assess that damage in such sums as would make plaintiffs whole. No rule of law for measurement was given to them. They were left to apply whatever rule of law they thought best to the facts and circumstances. Questions of law should not be submitted to the jury. Tracewell v. County Court,
For errors in the introduction of evidence not admissible under the pleadings, and for not properly instructing the jury on the law governing the measure of damages to be applied by them, the judgment will be reversed, the verdict set aside and a new trial awarded.
Reversed; verdict set aside; new trial awarded.