33 Fla. 406 | Fla. | 1894
The appellee, plaintiff below, sued the appellant in case for damages for the destruction of her property, consisting of fencing, a barn, orange trees and standing timber, etc., by fire set out by one of appellant’s locomotives on its right-of-way adjacent to plaintiff’s, premises. The cause was referred to and tried before' a referee and resulted in a judgment in favor of the plaintiff for the sum of $2,000, besides the costs,, amounting to $233.08, and from this judgment the defendant below appeals. The errors assigned are as. follows: 1st. Proceeding with the trial of the cause when it was not at issue, no similiter to the defendant’s plea of the general issue having been filed. 2nd. Refusing to admit evidence on behalf of the defendant
As to the first of these assignments, we find that the only plea interposed by the defendant was that of the general issue, or “not guilty,” concluding to the-country. All that was necessary to make the issue complete was a general similiter. None was filed by the plaintiff, but no notice was taken by any one of its •absence, and all parties voluntarily went to trial with•out it, and without protest or objection because of its •absence. Under these circumstances, the failure to ■file it is not such an error as will warrant a reversal of •the judgment upon appeal after a full and complete trial of the merits of the controversy between the parties as contained in the declaration and plea. St. Johns & Halifax R. R. Co. vs. Shalley (decided at the present term), and other cases therein cited.
The second error assigned is entirely too' general and Indefinite to be considered. In it we are not directed to any particular piece of evidence that was offered by the defendant and rejected by the referee; nor to any admitted erroneously on behalf of the plaintiff over the defendant’s objection. Neither in the briefs of the appellant are we cited to any particular, instance of the admission or rejection of evidence by the referee to which this assignment would apply. We therefore
The refusal to grant the defendant’s motion for a new trial upon the ground that the judgment was contrary to law and contrary to the evidence, involves consideration of the evidence in the" cause. The declaration alleges, in substance, that prior to the 23rd day •of March, 1888, the plaintiff granted to the defendant railway company a strip of land for its road-way 30 feet in width, and 1300 feet in length, upon which the defendant constructed its road. That when the defendant cleared and prepared the ground so granted for its railroad track, it cut off and dug up the weeds, grass, shrubs and other vegetable matter growing thereon, and carelessly and negligently allowed the •same to remain upon said right-of-way, piled and heaped up in large quantities upon and near the said track, and upon and over the whole of said granted vight-of-way adjoining the plaintiff’s land, and allowed the same to remain there for a long time until it became dry and combustible; and that while it was in this condition it was set on fire by sparks from a locomotive of the defendant while passing over its said track on the 23rd day of March, 1888. That said fire •communicated to vegetation growing upon the adjacent land of the plaintiff, and spread over a large part of her land, burning a,nd destroying her property as follows:
<60 orange trees, of the value of......'.......... $ 830
•One barn, of the value of...................... 200
1740 feet of fence, of the value of.............. 300
The soil on 25 acres of rich, uncleared land, and the forest growth of trees thereon, of the value of.......................‘.................. 1,500
*410 The forest trees upon, three acres of land that served as a protection from the cold to her orange grove, worth.......................... 1,000'
$3,830
That the said destruction and loss of property to her was caused by the carelessness, negligence and improper conduct of the defendant in allowing the aforesaid dry and combustible matter to remain upon said right-of-way, ánd liable to be set on fire by sparks from its locomotives. The allegation that the defendant deposited the brush, grass, shrubs and other vegetable-matter cleared from the road-bed in large quantities all along its right-of-way, adjacent to the premises of the plaintiff, and allowed it to remain there until it became dry and combustible, is not only amply sustained by the proofs, but no effort was made by the defendant to contradict it in any way. The proof further shows, without conflict, that at the time of the fire-it was a very dry season, and that a high wind was. blowing from the northeast towards the plaintiff’s lands from the railroad that ran in an easterly and westerly direction along the northern boundary of the plaintiff’s lands. Two witnesses for the plaintiff, who were at work on her land at the time of the fire, in plain view of the railroad and the defendant’s passing-train, and of two small shanties located near the railroad, on the northeast corner of the plaintiff’s land, swear that they saw the defendant’s train, drawn by a. locomotive, go by towards Palatka between 10 and 11 o’clock in the morning. That there was no fire anywhere about the plaintiff’s land, nor in the neighborhood of the two shanties prior to the passage of the train, but that in a very short time after the passage of the train, within a minute or two after, they saw the fire
The gist of the charge of carelessness and negligence .against the defendant in the plaintiff’s declaration is, that it deposited the brush and debris taken from its road-bed all along on its right-of-way adjoining the plaintiff’s land, and carelessly allowed it' to remain there until it became dry and combustible; and the proof, as found by the referee, shows that the fire ■started in this brush and debris. The uncontradicted proof shows further that this deposit of combustible matter became so threateningly dangerous that the ;plaintiff and her hired laborers habitually watched ■each passing train over defendant’s road for fear of their starting a fire; and two of the plaintiff’s wit
The objection that the finding of the referee is excessive, is without foundation. The proof as to the value of the property destroyed is ample to have sustained even a larger recovery.
The fourth and last assignment of error is without merit. The objection made is not that the defendant did not -bnfact have notice of the filing by the referee of his findings and judgment in the clerk’s office, but that there is no paper evidence of such notice filed with the record. The obj ect. of the statute in requiring the referee to give such notice was to give an opportunity to the losing party to present, within the time limited therefor, his motion for new trial. The defendant here was not deprived of this right, but did in fact have the notice required, as is abundantly evidenced by the fact that, within the time limited by law for that purpose,
The judgment appealed from is affirmed.