The defendant in error, hereinafter to be called the plaintiff, sued the plaintiff in error in the
For that whereas, heretofore to wit, in the month of January, A. D. 1904, and previous thereto, the plaintiff was the owner of certain lands lying and being in the county of Dade and state of Florida, and certain valuablе orange and grape fruit trees and other citrus fruit trees growing thereon, said land 'being located near what is known as ‘Arch Creek’ near the defendant’s railroad right of way; that during the said month, the defendant corporation, was a railroad corporation engaged in operating a railroad running from Miami to Jacksonville, Florida, and along by the lands of this plaintiff; that said defendant kept and maintained said railroad in the county of Dade and state of Florida and established at ‘Arch Creek’ a flag station along the line of said defendant’s right of way at which trains being run and operated by the defendant company were often stopped; that in operating said railroad said corporation, the defendant made use of locomotive engines operated by steam power.
That during said month of January, A. D. 1904, on or about the tenth day thereof, the defendant company, through its negligence communicated fire to the said lands of the plaintiff, by and from, a certain locomotive engine which locomotive engine was upon the railroad track,
The said trees so burned up, consumed and injured by the said fire so communicated by the said defendant company, were of great value, to wit: FI YE THOUSAND DOLLARS.
That as soon as possible after said fire was so communicated and said trees burned up, and within a reasonable time and within the time allowed by law, thе plaintiff gave notice to the said defendant company of said fire and the damage done and demanded settlement therefor; that the said defendant company refused and still refuse to settle therefor, to plaintiff’s great damage, in the sum of five thousand dollars.
Wherefore the plaintiff brings this his suit against the defendant corporation and claims damages in the sum of five thousand dollars.” The defendant filed a plea of not guilty. A trial was had, which resulted in a verdict for plaintiff for eleven hundred dollars. A final judgment was rendered, and defendant sued out a writ of error.
I. There are nineteen assignments of error. The first, fifth, tenth, and fourteenth are argued, and will be considered, together. Under these assignments, it is contended that “the court erred in permitting the plaintiff and his witnesses, W. P. Rodgers, J. C. Smith and D. B. Mabry, to give evidence of other fires set by locomotives of defendаnt, not shown to have been set by the same engine which plaintiff’s evidence tends to show set the fire of January 17th, 1904, for which plaintiff seeks recovery.”
The plaintiff and his witnesses were asked and testified about other fires set by other locomotives of the defendant in the vicinity of plaintiff’s grove, at a recent, time just before and after the fire of January 17th, which burned and injured the trees in said grove. The defendant objected to these questions and this testimony as follows: “It having been shown by the evidence of the plaintiff that the fire occurred within a short time after the passage of the West Palm Beach and Miami train, which passed Arch Creek at ten forty on this morning, and it having been within the power of the plaintiff to obtain discovery of the defendant as to the particular engine which drew this train, the defendant objects to testimony as to fires set out by any other engine and asks that the testimony be confined to fires set out by the particular engine which drew this train, the point we make being that the engine has been identified, or is capable of identification.”
In the case of Jacksonville, Tampa and Key West Railway Company v. Peninsular Land, Transportation and Manufacturing Company,
As- the origin of the fire must be established by reasonable affirmative evidence to a reasonable certainty, and as there was no direct proof of the starting of the fire, the plaintiff should be allowed to show that other engines of the defendant company started other fires at or about that time, either before or after the destruction of the trees, or emitted sparks, where the engine charged with the fire was not identified, as tending to prove the possibility and a consequent probability that some locomotive of defendant company caused the fire on the occasion stated. Grand Trunk Ry. Co. v. Richardson,
In Grand Trunk Ry. Co. v. Richardson, supra, the plaintiff was allowed to prove that at various times during the summer, before the fire occurred, some of the defendant’s locomotives scattered fire when going past the property destroyed without shоwing that either of the locomotives which it was claimed caused the fire was among the number, and without showing that the former locomotives were similar to their make, state of repair or management, to the latter ones. The Supreme Court of the United States, through Mir. Justice Strong, said: “The question, therefore, is, whether it tended in any degree to show that the burning of the bridge and consequent destruction of plaintiff’s property was caused by any of defendant’s locomotives. The question has often been considered by the courts in this country and in England? and such evidence has, we think, been generally held admissible, as tending to prove the possibility and consequent probability that some locomotive caused the fire, and as tending to show .t negligent habit of the officers and agents of the railroad company. Piggot v. R. R. Co., 3 M. G. & S. 229; Sheldon
It is urged on behalf of plaintiff in error, that, because Mr. DeWinlder noticed this fire right after the West Palm Beach train passed, the engine which set the fire was identified as the engine which drew that train. It may have been that engine, but this is not by any means certain. The witness did not see that engine emit any sparks or throw any fire. There is no telling how long the fire had been burning before DeWinkler noticed it. His attention was called to it l)y Ms ~boys. There is no telling how long the sparks or fire had smoldered .or burned there before becoming large'enough to attract the attention of some one some way off from Jt. One train had passed there at 6:30 a. m., and another a little before that time, and three other trains had passed there between that time and 10:40 a. in., including the Palm Beach train. What time two of these trains passed before the arrival of the last train we do not know. It is not at all unlikely that an engine drawing one of these trains emitted the fire complained of. It
The case of Annapolis Elkridge Railroad Co. v. Gantt,
We are of the opinion that the court did not err in overruling the objections made by the defendant to the testimony of the plaintiff and his witnesses that other fires were set out by оther engines of the defendant in the vicinity of plaintiff’s trees at a recent time just before and after the fire of January 17, 1901, which burned and injured the said trees of plaintiff; and that the court did not err in refusing to confine the testimony to fires set out by the particular engine which drew the West Palm Beach and Miami train which passed Arch Creek at 10 :!0 on that morning; neither did the court err in refusing to give the instruction requested by defendant, nor in its charge given or its own motion, based upon the evidence of other fires.
II. The second and thirteenth assignments are argued and will be considered together, as follows: “There is a material variance between the declaration and the proof
The evidence showed conclusively that the fire which destroyed and injured plaintiffs trees occurred on January 17th, 1904. There was no objection by defendant at the trial to the testimony of witnesses to the effect that the fire, for which recovery was sought, occurred on January 17th, 1904. The defendant did not claim at the trial that it was surprised by this variance in the time of the fire as alleged and proved, neither did the defendant claim or make any showing that it was misled to its prejudice in the preparation of its defense to the action by this variance, or request postponement of the trial of the case on account thereof. No objection to the form of statement of time in the declaration was made, either by demurrer or motion to make it more certain. In the case of West v. Blackshear,
III. The third and fifteenth assignments of error, which have been argued and will be considered together, present the contention that “there is a material variance between the cause of action as set forth in the declaration and the cause of action which the evidence tends to establish, in that the declaration is upon a cause of action for negligently setting fire to the land of the plaintiff, while the proof shows that the fire was not set to the land of the plaintiff, but upon other land, and spread from such other land to the land of the plaintiff.” Complaint is here made that the court erred in refusing to give the eleventh charge requested by the plaintiff as follows: “The plaintiff alleges in his declaration or complaint that the fire was communicated from one of the deefndants engines to the land of the plaintiff, and the plaintiff cannot recover upon a cause of action materially variant from that alleged. If therefore you believe from the evidence that the fire was not set directly upon the land of the plaintiff, but originated upon land of another party and spread to that of the plaintiff, you must find your verdict for the defendant.” Plaintiff in error complains also that the court erred in charging the jury as follows: “If you believe from the evidence that the defendant’s engine negligently set fire to grass along the line of the road, and that the fire materially spread and was communicated to plaintiff’s grove
There seems to be no doubt that 'the fire complained of was not communicated directly to the land of the plaintiff, but started along side of or near the rock road about one hundred feet south of the south line of plaintiff’s property and spread thence upon the plaintiff’s property and into and through his orange grove. The declaration alleged that “the defendant company, through its negligence communicated fire to the said lands of the plaintiff, by and from a certаin locomotive engine, * * * which fire so communicated from said engine, spread over and upon the lands and premises of the plaintiff and burned up, consumed and injured a large quantity of orange and grape fruit trees and other trees belonging to the plaintiff and being upon the said land.” There is no doubt that had the declaration charged and the testimony proved that the fire was negligently set out by the locomotive of defendant upon adjoining land of another and spread thence naturally to the land of the plaintiff and destroyed his trees the plaintiff would be entitled to recover. The fact that a fire set by defendant’s locomotive passes through lands of another before reaching plaintiff’s property does not render defendant’s negligence the less proximate cause of the destruction of such property by fire. Louisville, N. A. & C. Ry. Co. v. Nitsche,
In Jacksonville, T. & K. W. Ry. Co. v. Peninsular Land, Transp. & Manuf’g Co.,
The following cases cited by plaintiff in error are not in conflict with the views here expressed: Chicago, St. L. & P. Ry. Co., v. Burger,
IV. The fourth, eighth and twelfth assignments present the contention that “there is a material variance between the declaration and the proof, in that the proof tends to show that the spread of the fire into plaintiff’s grove was occasionеd by a new or intervening force, to wit: a change in the wind, and the court refused to instruct the jury as to this aspect of the evidence.” This contention is based upon the refusal of the court to charge the jury, upon request of defendant, as follows: “(6) In order to prevail, the plaintiff must not only prove by a preponderance of evidence that an engine of the defendant set this fire, and that the engine was either in bad order or improperly managed at the time, but this must be shown to be the immediate cause of the injury complained of; and if it appears from the evidence to your satisfaction that there was an intervening cause and that the damage resulted through a sudden change of the wind, and which changed the direction of the spread of the fire and blew it into plaintiff’s grove, and that the damage was made operative only
This court held in Jacksonville, T. & K. W. Ry. Co., v. Peninsular Land Transp. & Mfg. Co.,
In Northern Pac. R. Co. v. Levis, 51 Fеd. Rep. 658, the court held: “A simple change in the direction of the wind could not be considered as disturbing the unbroken connection between the negligence of the railroad company and the destruction of the wood, and it was in the province of the court to instruct the jury that it was not an intervening cause.” In Indiana, I. & I. R. Co. v. Hawkins,
Let us examine the cases cited by counsel for plaintiff in error in support of these assignments of error. The case of Penn. Co. v. Whitlock, holding that defendant having negligently set his own building on fire, the flames were
V. The sixth assignment is based upon the refusal of the court to give the first charge requested by defendant as follows: “In order to recover damages, it is necessary for the plaintiff: to prove to your satisfaction by a preponderance of evidence, both that the fire was set by a locomotive of the defendant, and that this locomotive was either in bad order, or improperly managed.” Counsel for plaintiff in error argues that the charge requested should have been given because it was in accordance with the 'doctrine laid down in Jacksonville, T. & K. W. Ry. Co. v. Peninsular Land, Transp. & Manuf’g Co., supra, which counsel quotes in his brief as follows: “The faсt that no instrument has yet been found which entirely prevents the escape of sparks from locomotives, seems, when
VI. The eleventh assignment of error is based upon the refusal of the court to give the ninth charge requested by defendant as follows: “One who owns property alongside
In Jacksonville, T. & K. W. Ry. Co. v. Peninsular Land, Transp. & Mfg. Co.,
Upon the eighteenth assignment of error, counsel for plaintiff in error says “the various errors discussed under the preceding assignments were presented to the court in the motion for a new trial;” and so it is unnecessary for us to add anything, upon this assignment, to what we have said already.
Finding no error, the judgment is affirmed.