71 So. 997 | Ala. | 1916
The action is to recover damages for the destruction of a lot of lumber by fire. The lumber was placed on the defendant’s right of way for shipment. Fire was communicated to it from a camp or commissary car used by the section hands of the defendant, stationed on a side track near plaintiff’s lumber. The origin of the fire in the car, whether accident, negligence, or intentional act, is not shown. The fire was discov
One of the main contentions of the plaintiff, appellant here, is that there were circumstances and conflicts in the evidence tending to show that the car was moved after the fire was discovered and left nearer plaintiff’s lumber; and this is by appellant claimed to be the basis of the negligence and the proximate cause of the burning of his lumber. These circumstances were that the burned car was seen the evening before the fire, when it was several feet further from the lumber, than was the heap of ashs, iron, etc., which next morning indicated the point where it was consumed. The contradiction consists of evidence tending to show contradictory statements by some of the witnesses who testified that the car was not moved after the fire was discovered. Appellant claims that this made a question for the jury to say whether, if it had not been moved, it would probably not have ignited the lumber.
The trial court, after all the evidence was in, gave the affirmative charge for the defendant, and this is the only error insisted upon to reverse the judgment.
We are not of the opinion that the circumstances and apparent conflict above pointed out showed or tended to show any negligence in the moving of this car, or in the failure to move it after the fire was discovered. If it be conceded that the car was moved several feet between the time plaintiff and his witness saw it on the evening before and the time it was. burned, there is nothing in this to show any actionable negligence or willful motive to jeopardize or burn the lumber. It may have been moved with the greatest possible care, whether moved before or after the fire was discovered; and the evidence introduced to show contradictory statements, if true, did not show or tend to show any actionable negligence, but rather tended to show the contrary; that is, that it was impossible to move it away from the point where it burned. We do not think that the facts shown, most of which are undisputed, make a case of res ipsa loquitur, to show
The burden of proof and the presumption of negligence are somewhat different in cases in which property is fired directly by sparks emitted from engines from cases in which the fire spread from other property on fire upon the right of way of the company. Mr. Elliott (Railroads, § 1242) says that, where a fire is caused by inflammable material on the right of way or by fire spreading from the right of way, the authorities are pretty well agreed and settled. In such cases it is but just that the burden should rest upon the plaintiff; for the means of proof are as equally available to the plaintiff as to the defendant.—A. G. S. R. R. Co. v. Demoville, supra; 7 Mayf. Dig., supra.
The Demoville Case is nearer in point than any of our cases.' There the distinction between cases of fire communicated by sparks from engines and cases like this was recognized; but in that case there was evidence which tended to show negligence in
The case nearest in point which we have found is that of So. Ry. Co. v. Power Fuel Co., 152 Fed. 917, 82 C. C. A. 65, 12 L. R. A. (N. S.) 472. The facts in that case were very similar to the fact in this case, with this difference: There there was some evidence to show negligence in the originating of the fire in the camp car, in that a drunken man was handling a lamp which ignited the car. The case was also governed by the laws of South Carolina, which state has a statute placing the burden of proof on railroad companies in all cases where fire is communicated from the railroad’s right of way, whether sparks from passing engines, or from other cause. In that case it was held that no liability was shown; but it was also held by a majority of the judges that the only acts of negligence shown or attempted to be shown were acts of persons not the agents of the defendant, or, if they were such, then they were done by such agents while not acting within the line or scope of their authority. In that case, however, the judgment of the trial court was reversed for its refusal to direct a verdict in favor of the defendant, notwithstanding the statute above referred to.
This is, of course, subject to exception where the fire was communicated by sparks from engines, locomotives, etc., as we have above shown. The reason of this distinction we need not now discuss.
Affirmed.