Louisville, New Orleans & Texas R. R. v. Natchez, Jackson & Columbus R. R.

| Miss. | Oct 15, 1889

Cooper, J.,

delivered the opinion of the court.

The appellant seeks a reversal of the judgment in this cause on three grounds: first, because the verdict is against the preponderance of the evidence; second, because the court erred in excluding from the jury evidence offered by the defendant to show contributory negligence on the part of plaintiff, and refused instructions of defendant that the plaintiff could not recover if it was guilty of contributory negligence; and, third, because the court erred in instructing the jury that if the injury was caused by fire communicated by the servants or agents of defendant in the running of its trains, the law presumed negligence and the burden of proving the exercise of care was on the defendant.

On the first point it is sufficient to say that the evidence supports the verdict.

The second assignment of error is not supported by the record. The defendant was permitted to prove the circumstances of the fire, the condition in which the cotton was at the time, its proximity to danger, and the manner in which it was loaded by the plaintiff company on flat cars without protection by tarpaulin or other covering. The evidence to which objection was interposed and sustained was the opinion of a witness sought to be put in evidence as to whether or not the cotton would have been burned if it had been loaded in a box car or covered by tarpaulins. The circumstances of the case were not such as to justify the introduction in evidence of the opinion of this witness. The jury were as capable of forming an opinion from the proved facts as this witness, and the evidence was properly excluded. Nor were instructions refused by which it was announced that the contributory negligence of the plaintiff would preclude recovery. The instructions asked by defendant and refused (the 3d and 4th), do not announce the principle that no recovery can be had if the plaintiff is guilty of contributory negligence. The proposition they declare is that the burden of proof is on the plaintiff, not only to show negligence on the part of defendant, but also to show that it (plaintiff) was free from negligence. This is not an accurate statement of the law, and the instructions were properly refused.

The remaining question is whether fire communicated by a train is an injury “inflicted by the running of the locomotive or cars” within the meaning of § 1059 of the code which declares that, “ In all actions against railroad companies for damage done to persons or property, proof of injury inflicted by the running of the locomotives or cars of such company, shall be prima fade evidence of the want of reasonable skill and care on the part of such company, in reference to such injury.”

We agree with counsel that the primary purpose of the law is to put upon the company the burden of establishing the fact of the exercise of skill and care in those cases in which by actual contact between the train and persons or property the injury is inflicted. But we are unable to limit the statute to such cases only. The reason of the statute was the known difficulty which usually attended plaintiffs in these actions in making proof of the circumstances under which the injury was inflicted by running trains. In the large number of cases it will be found that the injury springs from actual contact with the running trains, but we think the communication of fire from running trains (and it would be the same if the fire was originated in a train temporarily at rest), is an instance in which the statute applies. Fires in locomotives are sources of clanger against which it is the duty of the employés to guard by the exercise of care and prudence, and the escape of which in the shape of sparks the company itself must secure against by the use of known appliances and safeguards. Danger from this cause constantly attends the running of trains, and by the great number of such trains and the extent of country over which they are daily and hourly passing, the owners of property exposed to risk would in most cases be denied all hope of recovery if there rested upon them the burden of establishing by affirmative testimony the absence of reasonable skill and care by the servants of the company. We. have been unable to find any other statute similar to ours except that of the state of Arkansas, and in that state it has been held to apply to cases of this character.

We find no error in the record and,

The judgment is affirmed.