138 Ala. 379 | Ala. | 1903
This is a suit by the Sullivan Timber Company, a corporation, against the Louisville &
The third count of the complaint, in connection with averments of negligence, etc., on the part of the defendant, as to the cause or origin of the fire, which destroyed plaintiff’s property, counted on the falling sparks emitted from a passing locomotive of the defendant company, that fell upon the shed of the plaintiff described in the complaint, setting fire thereto, and thence the fire was communicated to and destroyed the other property. The sixth count counted on the negligence of the defendant through its servants, throwing grass or weeds, which had been cut down under its direction, towards and near plaintiff’s property, and negligently and wrongfully allowing the same to remain near the plaintiff’s premises, by which means fire caused by sparks from a passing engine falling on the grass and weeds was communicated to and destroyed plaintiff’s property. The seventh count counted on the sparks from the passing train setting fire to the dry grass, weeds and greasy waste, which the defendant had negligently and wrongfully thrown into the street between its railroad track and plaintiff’s property, and near to plaintiff’s premises, and negligently allowed the same to remain there, and whence the fire spread to and destroyed
The principal facts set up in these special pleas may be summarized as follows: That the plaintiff’s shed was constructed of inflammable material along the immediate east side of Water street, within thirty feet of defendant’s railroad track, which ran in and along said 'street; that dry grass, weeds and other inflamable, matter had accumulated on the street and side-walk in front of the plaintiff’s property; that the weather was dry; that the defendant’s locomotive engine, passing along there every day, frequently threw out sparks in dangerous quantities, all of this Avas known to the plaintiff; that plaintiff was required by city ordinance to sweep
The theory of the defense set up in the special pleas is based on the. principle, that if one commits a wrong, whether in tort'or in contract, whereby another is affected, or is apparently likely to be affected, it is both the legal and moral duty of the latter to exercise reasonable diligence to avoid the resulting injury to himself or minimize it as far as possible, and if he carelessly or negligently fails to do so he cannot recover of the wrongdoer such damages as he could have thus escaped.
This doctrine is well established in cases of the breach of contract and so recognized by this court in Murrell & Whitney v. Summers, 32 Ala. 66, and Strauss v. Meertief, 64 Ala. 307. But it is not confined to cases of contracts, and to cases of personal injury, as suggested in argument by counsel for appelee. It is equally applicable in cases of injury and damage to property resulting from a tortious act, and no good reason exists why it should not apply in such cases. The doctrine was recognized and applied in Little v. Fletcher, 81 Ala. 237, in an action for injury to property resulting from defendant’s negligence, and where the contributory negligence pleaded was similar in character and principle to that pleaded .in the case at bar.
The pleas here are not inconsistent with, or opposed to the principle asserted in L. & N. R. R. Co. v. Marbury Lumber Co., 125 Ala. 260, to the effect that the owner of
Our conclusion is that the court erred in sustaining the demurrers to the special pleas It is, however, proper to say, that in our opinion the mere failure on the part of the plaintiff to comply with the ordinance of the city
Several exceptions were reserved to the rulings of the curt on the introduction of evidence. We have examined and considered the same, and fail to find that any error was committed in any of these several rulings.
The defendant’s railroad ran in and along a public street in the city of Mobile, its right of way was limited to its track. The third charge given at the request of the plaintiff fixed a liability on the defendant for the'damages resulting from the fire caused by the falling sparks emitted from the engine and igniting the grass on its right of jvay, although the engine was properly equipped and properly managed, for a failure to keep its right of way clear of grass, weeds and combustible material likely to be ignited by sparks. None of the remaining counts of the complaint, after 1st, 2d, 4th, and 5th were eliminated, counted upon the failure of the defendant to keep its right of way clear of grass, weeds and combustible material, and the charge when referred to the counts not eliminated was bad. Moreover, there was no evidence that the fire originated from sparks falling in the grass and weeds on the right of way, and the charge for this reason was abstract. Charges four and five are subject to the same criticism. There -was no evidence to show that a properly constructed and operated engine would not throw sparks to a1 distance of twenty-eight feet, and such cannot be said to be a matter of common knowledge. The eighth charge, therefore, was improper, moreover, this charge ignores the evidence that a strong wind was at the time blowing. — L. & N. R. R. Co. v. Marbury Lumber Co., 125 Ala. 256-7; A. G. S. R. R. Co. v. Taylor, 129 Ala. 246.
To rebut the presumption arising from the prima facie case circumstantially shown by the plainteff, the defendant introduced evidence showing a proper equipment
The third count avers that the fire that so escaped fell upon the plaintiff’s property, while the 8th count charges that the defendant negligently <■->+ down grass and weeds in the space between the track and the plaintiff’s shed, and that the sparks fell into this grass and weeds setting fire to the same which was communicated to plaintiff’s premises.
There was evidence tending to show that the defendant cut the grass or weeds in this space, and, left the same lying where it was cut, but there was also evidence tending to show, that the defendant did not cut any grass or weeds in this space, and that the grass and weeds between the track and shed were left standing. Under the instruction contained in charge 17, the jury were required to find for the plaintiff, although they might believe that the grass was not cut down, but. was left standing, and although there was no count in the complaint covering such case, as the pleadings stood after the elimination of the 1st, 2d, 4th and 5th counts. The charge, therefore, was bad. The remaining charges given at the instance of the plaintiff, when referred to the pleadings, as they stood after the elimination of the several counts
Of the refused charges requested by the defendant, and here insisted on, the 4th and 5th were general charges to find for the defendant under the 6th and 7th counts of the complaint. As to these counts there was conflicting evidence, at least evidence authorizing different inference, and for this reason, these charges were properly refused. The 6th refused charge would have been proper if confined to the 3d count, but was bad in that it ignored other phases of the complaint and the evidence in the support thereof, upon which a. recovery was sought. The 9th, 10th, 11th and 12th refused charges were likewise faulty in ignoring phases of the complaint and evidence in support thereof, on which a recovery was sought. The 8th charge was not subject to this ground of objection, as urged by counsel for appellee, and as it correctly stated the law should have been given.
The 7th refused charge was argumentative and for that reason, if no other, the court properly refused it. For the errors pointed out, the judgment will be reversed and the cause will be remanded.
Reversed and remanded.