36 Fla. 584 | Fla. | 1895
Lead Opinion
The appellee sued the appellant in the Circuit Court •of Clay county in an action for damages for the alleged wrongful destruction by fire, negligently allowed to
After the reversal of the cause here on the former appeal the plaintiff amended his declaration, making it read as follows: “Said plaintiff sues the Jacksonville, Tampa and Key West Railway Company, a corporation organized and doing business under the laws of the State of Florida, defendant herein, and claims in said action five thousand dollars as damages from said defendant in the following circumstances: For that on the 18th day of March, A. D. 1887, a fire occurred at or near a point in said county of Clay, in said State, where a railroad operated by defendant crossed another railroad, called the “Melrose Road,’ which said fire destroyed certain valuable property of the plaintiff of about the value of four thousand dollars. then and there being in and near a sawmill owned by Buddington & Wilson, and situated in one of the angles made by the crossing of said railroad as aforesaid. A list of said property of said plaintiff destroyed by said fire as aforesaid is attached to the original declaration in said cause; and plaintiff alleges that near the crossing of said railroads, on the 18th day of
To the declaration as thus amendedly framed the defendant plead: 1st. The general issue, that it was not guilty. 2d. That the said supposed loss was occasioned by the plaintiff’s own negligence. 3d. That the plaintiff contributed to his own negligence to cause the said supposed loss.
The only error assigned is the refusal' of the court to grant the defendant’s motion for new trial. The motion for new trial was upon the' following grounds: 1st. The court erred in giving the charge requested by the plaintiff because it contained the words “to a lot of loose hay in a box car in possession of defendant, and which was on a spur track of defendant’s railroad.” 2d. Because the verdict is contrary to the evidence. 3d. Because the verdict is contrary to the law. 4th. Because the verdict is contrary to the charge of the court. The charge of the court excepted to in the motion for new trial, and assigned here as error is as follows: “If you believe from the evidence that on the 18th of March, 1887, in said county, sparks from one of the locomotive engines of defendant set fire to a lot of loose hay in a box car in possession of defendant, and which stood on a spur track of defendant’s railroad running between its main track on which said locomotive engine stood and plaintiff’s property, and that said fire ignited said box car,
There was no error in giving this instruction. The recital therein to the effect “that if sparks from the ■defendant’s engine set fire to a lot of loose hay in a box car in possession of defendant, and which stood on a •spur track of defendant’s railroad running between its main track on which said locomotive engine stood and plaintiff’s property, and that said fire ignited said box •car, and that it spread from said car to plaintiff’s property while a strong wind was blowing, and destroyed plaintiff’s property,” coupled with the further declaration of the charge, that if the evidence showed that • the fire in the box car was caused by the cegiigent construction of the defendant’s engine, or to negligence in the operation thereof, and that the fire that destroyed plaintiff’s property was the direct and natural consequence of the fire started by defendant’s negligence in
The member of the court who frames this opinion can not agree with the majority of the court as to the sufficiency of the evidence to sustain the verdict returned, but is of the opinion that it is wholly insufficient either to identify the defendant’s engine as being the originator of the fire that destroyed plaintiff’s property, or to establish actionable negligence on the defendant’s part, and that the judgment below should be reversed; but the majority of the court think otherwise, and that in view of the fact that there have been two jury trials of this cause, both resulting in a verdict for the plaintiff, and that the present record shows that certain maps and plats of the premises and surroundings were used in evidence at the last trial, that are not brought up in the record, and that may have thrown material light upon the case as viewed by the jury, that the verdict is not shown to be contrary to, or unsupported by, the evidence. The judgment appealed from is, therefore, affirmed.
Dissenting Opinion
dissents from the judgment of affirmance on the ground that the verdict is wholly unsupported by the evidence).