94 Va. 16 | Va. | 1896
delivered the opinion of the court.
This was an action in the Circuit Court of JSTelson county to recover damages for the destruction of a barn and its contents alleged to have been caused by fire communicated from the engine of the defendant.
There were two trials of the cause. On the first the jury found a verdict for one thousand dollars for the plaintiff, which, upon motion of the defendant, was set aside. On the second trial the plaintiff introduced no evidence, and there was a verdict for the defendant, whereupon the plaintiff moved to set that verdict aside and grant a new trial, which motion was overruled by the court, and judgment entered for the defendant.
All the evidence adduced upon the first trial is now before this court, having been duly incorporated in a bill of exceptions taken at the time, and signed by the presiding judge, and made a part oí the record.
Under the rule prescribed by the legislature, (Acts 1891-2, p. 962,) this case must be considered by this court looking to the whole evidence adduced on the first trial, and if it find that the Circuit Court erred in setting aside the first verdict, it must reinstate that verdict, and enter judgment thereon for the plaintiff, otherwise che verdict and judgment for the defendant on the second trial must stand.
Counsel have pressed with great earnestness the rule that the judgment of the lower court in setting aside a verdict because contrary to the law and the evidence is justly entitled to great weight, and that generally a stronger case should be made to justify an appellate court in reversing an order granting than one refusing a new trial. The rule is a wise one within proper limits. It cannot, however, be carried to the
If, therefore, this court shall become satisfied that the lower court, in setting aside the verdict, has disregarded the right of the jury to determine the weight of the evidence, or has in any other respect committed error, it should reverse its action. Unless it is so satisfied the action of the lower court should be affirmed.
There was peculiar propriety in a jury weighing the evidence in this case, and settling the issues between the parties,, and the conclusion reached by them should not be disturbed, unless there was a plain deviation from right and justice upon their part.
It appears that on the 10th of September, 1892, a loaded freight train goiDg west in the direction of Lynchburg over the road of the defendant company, passed, about ten o’clock in the morning of that day, through the farm, in Kelson county, held by the plaintiff in trust for Mary E. Lewis and her children. The burned barn was situated in an open field nine hundred and forty feet from the railroad, on a point higher than the road, and at the head of a hollow leading from the railroad in the direction of the barn. The engine and train passed a few minutes before the barn w as observed to be on fire, and the preponderance of evidence is that a strong wind was blowing from the engine in the direction of the barn, and that the hollow or draught leading from the railroad in that direction formed a channel up which there was a strong concentrated current of wind. It further appears that the barn took fire on top the roof, either of the
The defendant insists that the burden was not only on the plaintiff to prove that the fire originated from sparks or cinders thrown out by the engine, but that such sparks or cinders were emitted by the engine because of defects in its construction or condition, and by reason of the fact that it was . not equipped with the best appliances for arresting sparks and preventing the emission of burning cinders: In support of
this proposition the case of Bernard v. R. F. & P. R. Co., 85 Va., 792, is cited and relied on. It is true, as a general rule, that where no negligence is proved on the part of the railroad company or any of its agents or employees, and negligence is the gravamen of the action, the law does not impute it. It lies on the party alleging it to prove it. It is, however, equally true that where the subject matter of the allegation lies peculiarly within the knowledge of one of the parties, that party must prove it, whether it be of an affirmative or negative character. The law on this subject is well stated in 2 Shearman & R. on Reg., sec. 676. It is there said:
“The decided weight of authority and of reason is in favor
It is well settled that testimony is admissible on the part of the plaintiff tending to show that the defendant’s locomo
The rule laid down by the authorities cited that the origin of the fire being fixed upon the railroad company, it is presumptively chargeable with negligence, and must assume the burden of proving that it had used the best precautions known for confining sparks or cinders is a wise and just one. The law is liberal in holding that the railroad is exempt from liability when operated in a lawful manner, and in the exercise of reasonable care and skill, it burns the property of the citizen along its route. To bold that the plaintiff, in addition to proving that the railroad company is justly chargeable with the origin of the fire, must also prove affirmatively that its machinery was out of order, would practically defeat a recovery in most cases. The statement of the law as it seems to be laid down in Bernard v. R. F. & P. R. Co., 85 Va. 792, is not in accord with, the view herein expressed, and is therefore not approved.
The defendant, notwithstanding its position that no obligation rested upon it to prove that its machinery was in order, introduced witnesses to establish that fact.
The only witness who professed to have any personal knowledge of the condition of the spark arrester, was W. A. Sutton, the night inspector of the engines at Second street shop, Kicbmond. He testified that between six o?clock in the evening and six in the morning of Sunday, the 11th day
Whether or not the fire was caused by the defendant, and whether or not the engine was out of order, or the spark arrester of an approved kind, were questions for the jury, and being, no doubt, satisfied that the fire originated from sparks or cinders thrown from sthe engine, the other evidence was sufficient to justify their verdict, especially that of the defendant showing that it would be impossible for the fire to be thrown that distance if the spark arrester was in good
For the foregoing reasons the judgment of the Circuit Court must be reversed, and judgment entered here upon the verdict rendered on the first trial.
Reversed.