Virginian-pilot. (Norfolk, Va.) 1898-1911, 1899-05-27
COURT DECISIONS.
Notes of Cases Recently Decided,
Which are of Interest TO
Our People.
DIGESTED BY W. B. MARTIN.
Exclusively for virginian-Pilot.)
MOORE V. W. & w. r. CO.

April 4. 1899.
IN AN ACTION AGAINST a RAIL
ROAD COMPANY FOR BURNING
TIMBER ADJACENT TO IT'S
RIGHT OF WAY. THE BURDEN is
ON THE PLAINTIFF TO SHOW
THE FIRE WAS COMMUNICATED
BY DEFENDANT, IF THE FIRE
ORIGINATED OFF TIE RIGHT OF
WAY
The facts are shown in the opinion of
the court.
The court says:
This action is for damages in burning
the plaintiffs timber trees, wood, I'M
dcrgrowth. and other property adjoin
ing the defendants right of way. The
allegation is that sparks emitted from
defendants engine fell upon it's right OF
way, and fired combustibe and ignita-
bic matter on the right of way, which
fire was communicated to the plain
TITS premises and that-the fire AWas-
produced rs Il result of the defendants
negligence. There was no direct evil
dence as TO the origin Of the fire. There
was conflicting evidence as to the place
where, and the time when, the fire
broke out. The plaintiffs evidence
tended to show that the fire originated
on the right Of way, and he contende
that 1t came from sparks thrown out
by defendants engine. The defend
ants evidence tended to show that on
the same day. at Il later hour, pile
OF sites off the right of way, but
near by. was burned, except the ends
OF the ties and it contends that there
was the origin of the fire which burned
the matter on the right of way and the
plaintiffs property. OF course, these
contentious and the evidence were sub
mitted TO the jury. During the trial
the defendant asked the court to give
the following instruction to the jury:
THAT If the jury shall believe the fire
that burned the land of the plaintiff
originated in Il pile OF cross ties, and
that the pile of ties was Off the right
OF way. then the burden of proof is up
on the plaintiff TO satisfy the jury by
n prcponderance of the evidence that
the fire was communicated to the pile
OF ties by the engine of the defendant
land. even II the jury shall believe that
the fire was communicated to the pile
OF ties by the engine of the defendant
then the plaintiff cannot recover if the
engine of defendant was in good order
and repair. and equipped with an APP
proved spark arrestcr for preventing
the escape Of sparks, and was man.
aged and operated in a careful man
ncr by a slsiilful and competent encin-
Ger. and the evidence on the part OF
utlcnuunt as 10 ttllS - uncontrOVertod.
and not can,radictcdl." Ills honor re-
fused 10 give that part of the prayer en-
braccd within brackets. 1T is admit
ted by the plaintiff that the engine was
In good condition. and had proper
spark arrester. and was skillrully on
Grated With this admission. the
question of negligence in having defect
i've machinery is eliminated. If sparks
should escape such an engine as the
above, properly handled. and should
set on fire combus;ib!c matter along
the right of way. the defendant would
be liable for injuries resulting there.
from, not because the sparks ESCAPED
but Tor allowing innammaDle matter to
remain on it's premises: but IL sparks
from such an engine so beyond the de-
fendants right of way. and ignite such
matter over which the defendant has
no control. it would not be guilty of
negligence in that respect, nor for the
escape of the sparks. Or lie the nrc
originated outside the right or wov
from some other cause, and communi.
Gated itself to the right of wav and
then to the plaintiffs premises. tho da-
PENDANT would not be chargeablc viii,
negligence. The prayer refused ON.
braced an inquiry for the Jury how AMI
where the fire originated. and. as n was
not substantially given in any part OF
the charge. we think it was error 70
refuse 1t. New trial.