McMillan v. Manistee Mill Co.

Damages For Setting Out Fire. 1. Railroads; Operation; Setting Out Fire; Evidence. — The fact that the town authorities prohibited the defendant from loading or unloading wood in the town on account of danger from fire from the unusual quantity of sparks from defendant’s locomotive, is not evidence relative to an action for loss of goods, by another caused by fires from the defendant’s locomotive. 2. Same; Instructions. — A charge asserting that if the jury are reasonably satisfied that defendant’s engine was properly constructed, or in good repair, and properly handled defendant is not legally responsible for fire, ignores the duty on the defendant to provide suitable appliances for preventing the emission of sparks in dangerous and unusual size and quantity.

Appeal from Conecuh Circuit Court. Heard before Hon. J. C. Richardson. Action by Henry McMillan against Vastine J. Hurlong, doing business as the Manistee Mill Company, for damages for the destruction of certain wood belonging to the plaintiff, alleged to have been caused by fire set out from sparks emitted from a locomotive engine being operated by the defendant. Judgment for defendant, and plaintiff appeals. Charge 5, given for the defendant, was as follows: “The court charges the jury that if they are reasonably satisfied from the evidence that the defendant’s engine was properly constructed, was in good repair, and properly handled, managed, and controlled, that the defendant is not legally responsible for fire which burned the plaintiff’s wood.” It was competent to show that the engine was defective or that it threw out spark of unusual size or quantity. — Henderson v. Pennsylvania R. R. Oo., 144 Penn. 479; T. G. O. & St. L. Ry. Oo. v. Noel, 77 Ind. 121; G. T. Ry. Oo. v. Richardson, 91 U. S. 470; L. & N. R. R. Go. v. Marbury, 125 Ala. 253. Under these authorities, it was competent to show the action of the town relative to the particular engine. The court erred in giving the charge requested as it omitted several essential hypotheses. — L. & N. v. Marbury, supraj L. & N. v. Reese, 85 Ala. 202; 13 A. & E. Ency of Law, 504. The engine being identified, evidence as to what other engines did or their condition was irrelevant. — • A. G. S. v. Johnson, 128 Ala. 283. Charges requested by the defendant were properly given. — A. G. S. v. Johnson, supra; L. & N. v. Miller, 109 Ala. 500; L. & N. v. Malone, 109 Ala. 509. The fact that charge 5 was misleading is not grounds for reversal. — Evans v. The State, 120 Ala. 269; O’Donnell v. Weatherby, 76 Ala. 222.'