75 Va. 499 | Va. | 1881
delivered the opinion of the court.
This instruction, to the full extent of the proposition involved, is undoubtedly correct and is warranted by the facts proved. It will be perceived, however, it entirely omits one very essential element in its exposition of the duties imposed on the defendant. It makes no reference whatever to the dry grass and other combustible matter on the company’s right of way which were ignited by the sparks from its own locomotive, and was the main cause of the fire on the adjoining lands of the plaintiff. A railway company may be supplied with the best engines and the most approved apparatus for preventing the emission of sparks, operated by the most skillful engineers. It may do all that skill and science can suggest in the management of its locomotives, and still it may be guilty of gross neg
As has been already seen, this most important element in determining the question of defendant’s liability is omitted in the defendant’s instruction. The plaintiff not having objected to it, however, cannot be heard to complain in this court that it was given. Still, if the verdict appears to be correct, it cannot be set aside, because it is contrary to any erroneous ruling of the court. Had the verdict been in conformity with the instruction, great difficulty might arise in interfering with it, because a party objecting to an erroneous instruction must do so at the time, otherwise, in general, he will be considered as having waived the objection. But where the verdict is right it will not be set aside because it is in conflict with an erroneous ruling of the court. There is no doubt but that the jury in this
The only remaining question to be considered in this connection is, whether the evidence is sufficient to warrant the verdict. It was not directly proved that the dry grass and broom-sedge was set on fire by the sparks from the engine, but no reasonable doubt of the fact can be for a moment, entertained, and indeed it does not appear to have been seriously controverted. That this dry grass and broom-sedge was of a highly combustible nature, easily ignited, cannot be seriously questioned. It was permitted to remain on the very borders of the cut, and must have been therefore in close proximity with the mouth of the smoke-stack attached to the passing engine, and was of course liable at any moment to be set on fire by sparks from the locomotive. This might reasonably have been anticipated, and ought to have been anticipated and provided against by the company in the exercise of due diligence. "We do not mean to affirm that a railroad company is universally required to remove the dead grass and other inflammable material which may have grown on its right of way, and that its failure to do so renders it responsible in case of
In Carrington v. Ficklin’s Ex’or, 32 Gratt. 670, this subject was fully discussed by Judge Burks. It was there said that negligence is always a question for the jury when the measure of duty is ordinary and reasonable care. How much care will in a given case relieve a party from the imputation of gross negligence, or what evidence will amount to proof of that charge, is necessarily a question of fact depending upon a great variety of circumstances which the law cannot define. See also Pierce on Railroads, 434; Pennsylvania Railroad Company v. Hope, 50 Penn. St. R. 373.
In this case the jury, having found negligence on the part of the defendant, this court cannot interfere with the verdict unless there is a plain deviation from the evidence, or it is palpable the jury have not drawn a correct inference from these facts as certified. Blair & Hoge v. Wilson, 28 Gratt. 165, 174-5.
The next point for consideration is, whether the plaintiff was guilty of contributory negligence in not removing the combustible matter from his own land which was ignited by the fire first started on the defendant’s right of way. All that we have on this subject is a line or two in the certificate of facts, in which it is stated that the ground where the fire first caught was covered with grass and broom-sedge precisely as the field extending from the line of the railroad to the first piece of woodland was covered; from which it may be inferred that the plaintiff’s land adjacent to the railroad was covered with dry grass and broom-sedge to the same extent as was the defendant’s right of way. The point is made that the plaintiff, by his failure to remove the same, directly contributed to the injury which he sustained. It has been long settled, how
The rule may of course be subjected to modifications to be applied to the circumstances of particular cases. It will be sufficient to consider them as they may hereafter arise. There is nothing in the present case to warrant a departure from a doctrine so well supported by authority, and so just and reasonable in itself. I am therefore of opinion that the judgment of the circuit court is right, and must be affirmed.
Judgment appirmed.