Summary
In Atlanta St. A. B. R. Co. v. Spivey, 211 Ala. 520, 100 So. 759, plaintiff was permitted to show that on the occasion that the plaintiff's property was alleged to have been destroyed, "about one-half mile above where plaintiff's property was destroyed, * * * some trash was * * * ignited by sparks from the [same] engine."
Summary of this case from Atlantic Coast Line R. Co. v. R. L. Cooper Lumber Co.Opinion
4 Div. 121.
May 22, 1924. Rehearing Denied June 26, 1924.
Appeal from Circuit Court, Houston County; H. A. Pearce, Judge.
Espy Hill, of Dothan, for appellant.
The facts set forth in the complaint fail to show that plaintiff's property was on defendant's right of way or in close proximity to its railroad. A. G. S. v. Johnson, 128 Ala. 284, 29 So. 771; Irween's Case, 2 Ala. App. 552, 56 So. 769. The fact that sparks and fire were emitted at one place is not admissible in a suit for fire at a different place. B. R., L. P. Co. v. Hinton, 141 Ala. 611, 37 So. 635; B. R., L. P. Co. v. Martin, 148 Ala. 15, 42 So. 618; A. G. S. v. Clark, 136 Ala. 462, 34 So. 917; Farley v. M. O., 149 Ala. 557, 42 So. 747; Stonewall's Case, 177 Ala. 327, 58 So. 313, Ann. Cas. 1915A, 947; Slade's Case, 192 Ala. 568, 68 So. 869; Stanley's Case, 186 Ala. 95, 65 So. 39.
Lee Tompkins, of Dothan, for appellee.
Counsel discuss the questions raised, but without citing authorities.
Suit by appellee against appellant to recover damages for the destruction of plaintiff's property by fire alleged to have been negligently communicated thereto by defendant.
We are of the opinion the complaint was not subject to the demurrers interposed thereto. L. N. R. R. Co. v. Marbury Lbr. Co., 125 Ala. 237, 28 So. 438, 50 L.R.A. 620; A. G. S. R. R. Co. v. Clark, 136 Ala. 450, 34 So. 917; B. R., L. P. Co. v. Hinton, 141 Ala. 609, 37 So. 635; B. R., L. P. Co. v. Martin, 148 Ala. 9, 42 So. 618.
Plaintiff offered testimony tending to show his property was ignited by sparks from the engine of defendant's train passing this location something after the noon hour on December 14, 1921, and that smoke and cinders were emitted in unusual quantities.
Defendant's theory was, in substance, that the fire did not originate from sparks from its engine, and also that the engine was properly equipped and operated, and emitted no sparks.
Plaintiff was permitted to show by one Herring that this same train passed him on the same occasion, about one-half mile above where plaintiff's property was destroyed, and some trash was there ignited by sparks from the engine. We think it was competent for plaintiff to show that this particular engine continued to emit sparks to such an extent as to set fire to the trash one-half mile beyond plaintiff's property at the same time and occasion. 33 Cyc. 1374.
The authorities relied upon by counsel for appellant (33 Cyc. 1371; A. G. S. R. R. Co. v. Johnston, 128 Ala. 283, 29 So. 771; and Farley v. M. O. R. R. Co., 149 Ala. 557, 42 So. 747) are not in conflict with the conclusion which we have reached. Here, as heretofore stated, the proof was as to the particular engine on this identical occasion emitting sparks only a very short distance from the place where the plaintiff's property was destroyed; and we think the evidence was admissible under the authorities generally as indicated in the note in 33 Cyc. p. 1374, supra, as well also our own case of A. G. S. R. R. Co. v. Clark, 136 Ala. 450, 34 So. 917. The Farley Case, supra, dealt more with the question of the affirmative charge.
For the purpose only of fixing the time in the mind of witness, plaintiff's counsel was permitted to ask the witness Mixon what day it was he had a fire. We see nothing in this of prejudicial effect to the defendant. There is nothing in this record indicating that Mixon's property had been destroyed by fire caused by the defendant, and any such inference would be highly speculative and without foundation in this record.
There is nothing in this record indicating in the least that the insurance by the plaintiff of his property was material in the trial of this cause, and the objection to this proof was properly sustained. 33 Cyc. 51.
The defendant offered to show that the federal government inspects engines of the railroads, and that defendant's engines, including the one here in question, had been inspected and approved. So far as the record here discloses, any such evidence of approval would be based upon hearsay, and we are of the opinion the court committed no error in sustaining objections to these questions.
It was clearly competent for the plaintiff to show that as the train passed plaintiff's property the engine was emitting sparks and cinders, and the assignments of error based upon objection to such proof are not well taken.
One Turner, a witness for the defendant, testified on direct examination, was cross-examined, and examined again by counsel for defendant, again cross-examined by counsel for plaintiff, and re-examined by defendant's counsel. Clearly, the extent of further re-examination of this witness by counsel for the defendant was a matter resting largely in the discretion of the court, and no reversible error was committed in sustaining the objection to the question asked the witness as to whether or not he was noticing carefully and looking for fire.
The action of the court in sustaining objection to defendant's question on cross-examination of the plaintiff as to what it was worth to pick a thousand pounds of peanuts was clearly without prejudicial effect. The question was in substance answered on redirect examination of the witness, as it appears from his testimony that the market value of a ton of peanuts was $80 per ton, picked and ready for the market, but only half of that value unpicked and on the vine, and that the peanuts on the vine were worth only $40 per ton.
We have considered the various assignments of error argued by counsel in brief, and, finding no reversible error, the judgment appealed from will be here affirmed.
Affirmed.
ANDERSON, C. J., and SAYRE and MILLER, JJ., concur.