39 Fla. 196 | Fla. | 1897
Error is assigned on the ruling sustaining the demurrer of plaintiffs below to the second plea of the defendant, but we discover no error in this respect.
Where negligence is the basis of liability it must be alleged and proved before recovery can be had. Walsh vs. Western Ry. Co. of Florida, 34 Fla. 1, 15 South. Rep. 686. The rule announced in Jacksonvillle, T. & K. W. Ry. Co. vs. Peninsular Land T. & M. Co., 27 Fla. 1, 9 South. Rep. 661, is that the mere emission of sparks from a railroad locomotive, or the mere setting out of fires thereby,' is not, per se, evidence of negligence upon the part of the company; but when the emission is of such character as is inconsistent with the common experience or the known efficiency of approved spark arresters in general use and properly used, it is evidence of negligence. The emission of sparks of unusual size, or both of unusual size and in unusual quantities, is evidence sufficient to raise the-presumption of negligence and throw upon the company the burden of removing such presumption. The facts in the case referred to authorized the giving of a charge embodying the rules of law stated, but in the-present case there is an entire absence of any proof as to the character or quantity of sparks emitted from the locomotive of appellant.
In the portions of the charge objected to, and indicated as numbers 1 and 3, in the statement, it will be seen that, in submitting to the jury the question of the company’s negligence, the court has much to say about the duty of defendant^ use reasonable care and diligence to prevent combustible material from accumulating on and near the right of way of the railroad. There is no allegation in the declaration that the company negligently permitted combustible material to remain on its right of "way, and by means thereof fire was communicated to the property of plaintiffs, but ■the averment, in effect, is that the company by its servants and agents so negligently managed and operated .■one of its engines as that sparks escaped therefrom
We entertain serious doubt as to the sufficiency of the evidence certified to us to sustain the verdict in this case, but the reversal is on the grounds stated above. The judgment will be reversed.