The Dorset County Express and Agricultural Gazette.
Dorchester, Dorset, England, 1869-07-27 00:00:00

NISI PRIUS COURT-FRIDAT.

(Bofors Mr. Jp.tLc. KIATISO And a opecial jury).
DANIAGIS FOE A RAILWAT TM!.

George Smith v. The London Soseh•Wesiern
Alit way Chaspas —Mr. Cole, Q.C., Mr. Bere, Q.C.,
and Mr. Nagent 'Jukes, for plaintiffs,and Mr. Kingdon,
Q.C., Mr. Lopes, Q C. and Mr. Murcia for the defend.
sot.. This was an action for tat, damages by the
burning of a cottage and furniture at Binegar, through
the alleged negligence of the deferelant'a
Mr. N. hankie said the declaration stated th it the
plaintiff was possessed of • cottage and prendsce at
}Unclear, and the defendants were possessed of and hal
the management of • railway running by plaintiff's
rettaire, aiel there were locomotive eneiurn used on
the railway, and that through the negliroce of defend•
mite, the rill cottage, premises ant furniture were
destroyed by Are from the engines. The sec,n,l oount
alleged that through the improper conduct and merle
Innen of the defendants, there was a quantity of grass
cut and left on the banks of the said railway, that it
, become ignited, and spread over field to the said
cottage of perintiff. In the third coot defendants
wire alleged to have 'narrowly burnt the grass and
trimmings of their hedges .° tl at by their neglig.mee Are
was communicetaf to the sail cottages of the pleintiff,
and they were burnt down. The dr feudants plbaderl
not guilty. Upon that pea lame was joined,
and that was the issue they bad to try.
Mr. Cole said that this ection was originally com-
menced in the County Court, but was moved by the
defendant by certiorari to the superior court. The
notion was brought by the ;delete'', who Is a labouring
man, "ivies at Itinegar, against the London and South.
Western Itailwey Co., to recover .1:30, value of
furniture and Ifrecto he had in • cottage wi ich was
burnt down and all his goods destroyed, as they said,
by the negligence of the comeany. Tho plaintiff rented
• cottage of Mr. Boud,Mnil it was situated about 56
yards from the defendants' railway. They might
remember thet for many months last year the weather
was extremely dry and i.e. and no doubt many fires
occurred on the line in various places (min time to
time. On the Mil of August there were three men
en•ployed by the railway company in the neighbours
hood of Binegar - the place where the Are conmeineell—
in c'eaning up trimmings from the hedges by the side
of this lane. I tsploatel th itafroiu time to time they
'ore in the habit if cutting the 'grass, trinimieg the
hedgm'and solon,by theei le of the line, which they
sometimes got rid of at once, and at others allowed to
remain on the line. Most unfortunately—for be
believe.' it would turn out to be the comae of the
accident—they had left at the spot where the Are
commenced • very considerable quantity of gram trim-
mings strewed along thetline. It had remaiued there
for mono time, and had become so airy that it was the
moat inflenunable material possible to leave in that
plaae. On the day in question &hie e'rnen hail been em-
ployed on this line erne Hobobridire, collecting the
stuff there and burning it.. From 0111 noire, • v ry
5,-noes fire occurred. so 'leach so that is man thatching
a rick at some distance, aiming the smoke, and baring
some barley in that direction, became &tanned and went
towards the spot. when he met his master, who in.
formed him the tire woe on the line, and he returned
to his work. The three men—Charles and Henry
Barnes and Joseph Diffey —went along the lino from
Holeibrelge, collecting and getting rid of the cuttings
by burning them. Just before ono o'clock they were
on the line nearly opposite plainnfra cottage. They
were sitting at dinner. Samuel Smith and ho
sous, who lived clue by, and crossed the line sever •
times that morning before one o'clock, would be called.
They saw the down train pui., and every thing was
sire. Within ten minutes a slight smoke was seen on
the line, bat nothing to attract their especial attention.
The op-traie pused about one. Almost imineiliately
after • fire brae onion the line, Just after one Barnes
went to S. Smith's house for assistance, saying they hail
got a fire on the line. Smith and his sons ran to the
spot. Smith stayed behind • little to look for two
buckets, but he found one had been taken away. This
fast he asked the jury to remember. He took the other
bucket and went down to the fire. He found the hedge
sad railway fence burning. His missing bucket was be
the side of the lino, wet as if just used. A rake, his
longing to him, was who there, considerably burnt,
leaving no doubt that the fire had existed on the line
some time before assistance was called. The wind was
blowing very strong, he believed almost a gale, and the
result was that the fire, which originated on the line,
rasi across the hedge of the railway like wildfire,
through a dabble field, across • maid, naught • small
shed, and eventually plaintiffs cottage. The house was
entirely burnt, and the furniture destroyed. How was
it done? For the plaintiff, it was said that the fire
arose either from the engines or from the lire lighted by
the three men burning the rubbish, and the tire getting
beyond their control, lie did not care at all which way
it originated. If it arose from the engine, and that
engine was improperly c iwitructerf, there was a CAIN
maniac the company at once. Whether or not the
engines were properly constructed was a very difficult
question, as persons had no opportunity of inspecting
them. There were several distinguithed gentlemen
brought down by the company, no doubt for the pun
pose of proving that the engines were of the most in.
proved construction. They had • hint that this would
be the 0424 from the oorreepondenou which had theca
place, and that the engines were fitted with all the
modern appliances to prevent the taupe of sparks
from the chimneys and Are boxes. He did not
we whether they were or not. Construct an
engine how they might, tbey could not prevent marks
from escaping. If they appealed to the eommon
experiences of those who travelled at night they would
know that nothing was more common than for sparks
to be emitted from the engines, end he defied any of the
scientific gentlemen to bay the escaping of twice cold
he prevented. If they charged the railway company
with negligence as to their engines, the evidence of the
scientific gentlemen would be most useful, bat he should
show the company were negligent in other respects—
that they left upon their line what really was • train of
gunpowder in that tremendously hot weather, when
everything on the line was most eonabustible, and it
was the duty of the unipany—and they seemed to Is see
apprehended it, bowsaw they gave their men instruc•
thong to clear up the stuff on the line: but he should
show them, that for • fortnight these euttingo and
trimmings hal nmelned, and that the tire ori,inated
with • portion of them on the line. He didn't care at
all whether the company proved that the engines were
mud with Mr. Beattio's patent, or anybody eler's
meent, to prevent the escape of sparks from their
funnels or fire•boses. He put the company upon the
horns of this dilemma. The fire broke out on their
line: how did it break out! He would n cl some of the
v,eireesponalence that bail taken place. Tee letter from
the solicitor of the eompany was • either imperious use,
, gni he did not think he was at first very candid, because
he wrote to say that the fire did not originate at all on
the lee bat eight yards from it, whereas at that time
ebd a statement from an officer of the company that
it aid originate on the line. Oil the sth August, Mr.
the olliaer of the company sent down to inquire
Bagg
into the Get, wrote to Mr. Crombie as follows:
. it it.. duo,' I roller ea the Iltawn Jeunsey by one .4 the
pitt.i„ era, that the lire :vale oet attasof
trh.,tiblenT,Ld= htzl
1""r• iength eliere it iscurnsi. The, 4:40 thtt
1ti:3472-,lietit.:l•ll:td.ttn,ll..it; 1
llre .r:r474.1 igeteal eat la
other
Thai was perfectly trno : there was not ten lama .1
between the two trains.
. the ito.
inire 16° '‘Ar4. ""milsiilisnii
elta the) e. A A . f. ais the tam. nos mi • i

That woks eery curions. There wan nobody on the
line, awl inunotlisty at ter a train bad passe,l the fro
bn k. out. .. . _ . _ .

nI h • Inthi•l I 'au 4. The ere eerasreed On
el It •tArtal .thontat three (vet h,rn the
And tb. 14..4.0: and Um lint. 'Mc gr.'- o.Vt
thick awl gh, "

That was &strong feet they admitted.
And ht my eganh.a the fire ..rieortte.l the...win...!
a li.ghtut In4n i•lle of the e.trrlaKten. It .14.11iti (.01 ali..ut
thrn 1.4 %here the 111....neenunm.l. It ha.l emote the atiatat.
any,: ot Ore fn.a the caret thou l (ruin the en„ino.

Tent wee the iwo.o eurwas dustriue he hkd ewer
hentoll.
MC Ore from the engine would be thrum further IT -
Hoer very ulat ! net was tee fauwiest doctrine
eenrable
Anal 1 that in this the mum 41 the fir
it were f th,

II e thought the engine went in front of the earriegoi,
and that optrk from it might drop jo.d Aeolus° to the
boo at are thrown feint one of (ho hayiagm
The fire appear, to have garteil • •• 1111.1, tto.anio,n foot-
leaned., and no. thnotzli the built:v. jilt.. 3 Atlliohic 114.1.1. rh,
Olin!hri•l• at thy time, tii.l tin 11101 to t rim thromili the
atulible field lihe r 11.1.11 re, anti the I.N4t3gtl Im lire ill Kw.
than flit minute,

That was written iWO days after the fire yet on the
Ifith of August, 31r. Crombie write that

SC% Cral I.f the platelacri ascu. the pit rice° amongst the
tarlit.t t,, the Gee, and it countiotool eight 3arthi trout
the rules) fence.
Tbid was curiousafter be bad bad the report of his
own officer, that the fire originated on the line and
apread from it, and be Ira, at a loss to know how it
could be espbtined. How did the fire originate? Was
it by a spult from ono of tho two ergitat g, or was it
uossaiou,d by the men burning those trimmings If it
arose loam tither of thew, then the c,nni.l4 was
liable. He quoted a can, argued to tho Eacheiluer
Court in support of this view.
The Judge rcnizrkol it was eassential to show
negligence.
Mr. Cole said he contended that the conduct of the
defendants was nealigent.
. . _ .

Mr. Kngdonid the cute quoted by Mr. Cole was
overruled in the Exc quer chamber.
. . .

Mr: Cole soil net in the way in which he applied it.
Be then called the following witnesses.
Eduard Borne., labourer, of Hinegsr, exulted by Mr.
Berm said that on llonilsy, the 3rd of Augurt, 184,3,
he was .t work for Mr. it. Smith, whoa* cottage ie
abont 200 yards from the line. Hail dinner at Smith's,
and while there Charles Barnes, who is employed on
the line. came and asked for assistance, slaying they
had a fire on the line. I went insinediatelr. Ile
stayed behicd for • bucket of water, When I got to
the line I found the railroad fencing burning both aides
the cult. It might have been limning five minutes.
Joseph I/iffey and Henry Denies were there. They
lisol a brush in their hsLds, and were fighting out the
fire. Saw a bucket there. I. was wet, and there wan
• little water in it. Had some conversation with them.
W • tried to put it out with brushee mid a shovel I took
down, by putting dirt over it. We stopped it from
going np line to it. Smith's. Wind srs blowing from
S. K. very strong. tow.rds plaintiff's cottage. TI ore is a
hedge from S. Smith's house to the railway. It got on
fire, but we got it under. The fire was log up the
dyke when I gut there. It got to the stubble, and we
conld not put it out. I kept it froni going to S. Smith's
premises. ant when they were 'ale, I went to the
other part. Fire crossed the stubble, went through the
hedge, crossed the road, and °might a little
building beside George Smith's cottage, and
from thence to plaintiff's premises. Had 'rowed
the line several times that morning where the fire
occurred. The last time at aLont a quarter to one.
That was a quarter of an boor before Barnes came for
assistance. Saw the down train tau before I got to
the house. S4l, no fire on the line when I crossed it
at a quarter to one. The three men were then on the
line. Had seen them that morning raking up the grass
ad trimings. Had crossed the line on previous days.
The trimmings and "rummage" of the line had been left
there for a fortnight. As I went to dinner the men
were sitting on the line On the opposite side to *here
the lire broke out having dinner. It had been tremendous
dry and munching weather for the previous f. rtnight,
worse than it is now. They were jest opposite where
the fire occurred._

era's examined by Mr. Kingdon : The trimmings
they were raking up were all along the line, and were
raked up into little heaps. They bad been there about
a fortnight. When I got there the hedge and from it
to the rails was burning. Could tell it bona from the
rails because the track of the fire and cinders were left
behind from against the rails. From S. Smith's house
to plaintiff's cottage is MK/ or GOO yards.
Samuel Smith, eaaioned by Mr. Cole, said: I BM a
small farmer at /Merger. I remember the fire on the
3rd /twat very weli. Hail a field both aides the line,
and less at work tbere that day across the lice. About
one o'clock Irma acne,' the line Lime to dinner, Then
now no ay lepton of Are. In about • quarter of an hour
Barnes cum, F r assistance. I and my son went. Took
• bucket of water and • spade. The water bucket was
I gone, and I took a dairy bucket. Found my water
I bucket on the railway. It seemed to have been thrown
down in a hurry. Saw some trimmings along the beige
of the line. Fire was burning in the line hedge and •
little into the field. The hears on the line were all
consumed. The fire came through the line hedge and
to the cottage. We stopped the fire from poirg towards
III! premises. The men on the line hail that ni rcing
been cleaning up the trim:Mega, some ef which had
been there as long as • fortnight. Saw the down train
peso before I went into dinner, and the up train when
we were in the house. We were called a few minutes
after we bad begun dinner. When the fire got to the
stubble field it went on as fast as a man could run. It
got to the plaintiirs pigstye and the cottage was burnt
down. After the fire now my wooden rake, which my
wife bad lent them a few days before.
Cross-examined by Mr. Kinglon The stubble field
had been cut three or lour days before, and won •ery
short. _

George Smith, examined by Mr. Ben., sail: said I
am the son of S. Smith, end went down with lkirnes to
the railway, A nutlet 3. Found fire burning on the line.
Had see C. and H. lt roe. ant J. D Hey at work on
the line • fortnight hoer° trimming the hedges. They
left the cuttings there to the 3rit Au:pant. in little
heap,. Saw them put into helm that day, 17p to then
they Ira I been strewn on the line. Thu trinuninv not
burnt weru taken sway next day.
Crows-examined by Mr. lionrlon : 11170 five brother,'
K. op a gun. Have never tired it with • heifer mateh.
Neither I nor tny brothers ever burnt a tar pot
clot, to the hedge, Anil never tried to burn out a robbit
in the month of Aimed. Joseph Rickets has not com-
plained id me or my brothers shooting or burning out
rabbits there.

Ite-examined :On 3rd of August,' and all my brothers
were k a vain,.
Ric iard Dorey. thatcher, examined by Mr. Cole,
said: I live at Holtiabitilge, chino bg the line, and on
3r.1 August was thatching a wheat via for Mr. Bennett.
In the morning saw • fire at Holmbridge, close by my
boos,. Had • bit of barley gut there, wag alarmed,
and went in that direction. Met Mr. Bennett, whip
told told me where the fire win,and I returned to my
work. Was at work shout 200 yards front plaintiff's
onttage,land 150 yards from the line. Could see the
line and cottage from the rick. Beinember the trains
pawieg. After the down train bad passed about 201
minutes saw • smoke on the line. That was about live
or six minutes &fore the up-train pissed. Next thing
Raw was the men working on the line trying to
" dowk" a fire. Saw the fire go up to the stubble field, I
I went towards the cottage. The men on the line were
beating it down with their tools. This was before it:
reached the field. At that time there was no fire out- '
side the line. I went to the eottsge awl mile I up a
bedridden permo there. When it get into the bold the
railway moo had called for help, and I raw five or six
there. Saw the man on the line that morning.
Stephen Bennett, °seminal by Mr. Sere : I live at
Wareham, and we have • farm at East Stoke, whither
I went on August 3. W. near liolrobridge about 9
o'clock. Saw the man working on the line. A fame
bush was on fire.
. . . . • .

Mr. King on objected that this was irrelevant.
Mr. Cole paid it eras to show the men were in the
habit ni Aramaic rubbish on the lice.
His lordship said it was so far a-told as not to boar on
the issue. . .

. ---
By Mr. Cole: Saw the fire and met Dory going to-
wards it. Tokl him where it was, and he returned to
his work.
William Mmes. of East Stoke, examined by Mr.
Cole, rid : I am 13 yoara old. Was at work nvar
where the fire happened. Crossed the lino about •
quarter-past one, at Higher Gates, 209 yard. from
where plaintiff's cottage stood. Saw one man on
the line and two in the &LI boating out fire. Saw
smoke before getting to the line.
John Miller, xamined by Mr. Ilere : I live at East
Stoke, near Holmbridge. Have known the throe 1111.1.
who work on tic length of line between Holiubridge and
beyond plaintiff's cottage for rowel yeart, shortly
atter 9 o'clock on Anguat 3, saw them at liolitibridga
collecting the trimmingt and burning them. Watched
them wane time. Hail been attracted to these fires
several tines. Saw a great smoke that morning, and
came down to the rail to see what it Nu. The men
went on towar.iii the eottozea, and were collecting the
trimming. .ind burning them. About u'elnik ISM a
great •itiolc, at Cii.esr, .iiid then the cottages in •
blase.
Cross-crammed by Mr. Kingdon : It was not a furze
bush they were burning. I was only a few yards fro-a
them. 'l' Ina was half-nrile from the cottages. I wont
down to the line, and when I sae the men there I ire
witisfied, rims. I knew they would put it out. Had
°reran to go down to the line several times to put out
fire c tuned by the engine, when the won were not
there. . . .

Oliver William Ferrer: I am a magistrate of this
*aunty and a barrister. On the 3rd August there was
• very high wind, and it had been very dry • long time,
and there had been fires all sheet the country. Shortly
after the fire I went to the line, and examined the place
of the fire. Think it °online:iced on the line, the
corner of Mr. ILnnett's field. Mr. :smith's hedge wane
little burnt. Fire went &Ion.; bodge line ant iii a
diagonal direction towards the liehL When I got there
the cottages were burning.
cerio.ezamined : Think the tiro commenced about
throe feet from the fenco. Wll4 was blowinz strongly
freer the railway. It couil not have commenced frou(the
outiiie of the railway fence.
This was plaintiff's 0160.
Mr. Kingion said ho should contend no case
was unide out. There was no proof of positive negligence
on the pat out defendant. It was not shown that the
lire was caused by sparks from the engines, or by the
three men eroployod on the lino. It wax their dinner
beer Iron. 12 to 1 o'clock. end at a gamier to one they
were sitting down coding after the r moat, and up to ene
o'clock there was CO trace a any tire. lie submitted
there was nothing Wet, to the jury.
Mr. Lopez followed on the same side, arguing that
there was no negligence on the part of the company to
render them liable in this use.
. . . . . .

The Judge said it was very near the lino—(laughter)
—.ml ha would consult his brother Lush on the
subject.
Mr. Cole said he should ountend there wan evidence
to to to the jury, end that negligence wee shown by the
csaiipeny allowing the stuff to ',Julien on the hue for •
fortnight.
Mr. Kingdon said at the time the tire ocourred the
men were sitting on the opposite side of the line.
Ilia lordship thee retired. On returning the judge
said he bat, conferred with Mr. Justice Lurk who agri.sql
with him that it wes exceedingly airmr the hiss. fiLL•I what
I. • ,a 01.004 doe, w.a Ot:•- -if Mr.
ot Plower leo niW, the feet., woosil