The Montgomery advertiser., 1903-08-02
ALABAMA GREAT SOUTHERN RAIL
 ROAD co. V. CLARK.

ROAD GU. V. CLAhh.
 Action against railroad company to re-
 cover damages for less sof cotton By
 fire caused by sparks from locomotive
 Appeal from the Circuit Court or
 Greene. g-1s
 1. Pleading and practices; suficiency or plea tested by demurrer; when motion 70 strike should be sustained.-The sui ficiency of a plea in an action at law should be tested by demurrer and not py motion to strike, since a motion to strike should not be sustained except where the pleading is unnecessarily prolix, irrele- want and frivolous.
 9 Action against railroad company tr recover damages for burning Of cotton; sufficiency of cofnplaint.-In an action against a railroad company, count or the complaint which seeks to recover damages for that "the defendant negii- gently set fire to and destroyed, to wit. one hundred and fourteen bales of cot ton, the property of the plaintiff GOT in which the plaintiff held the equitable or beneficial interest and which was located at a certain designated place. sufficiently states a cause of action and is not subject to demurrer upon the ground of the insult ficiency of the averments as to the negli- gence of the, defendant. or that 1t Is not shown what the plaintiff's title was, WneLh6rz z4IS-HaS-a eulllLADle kS6faAe 8. Warehouse receipts; effu0rsements thereon. not necessary to transfer ,title.- The endorsements of warehouse receipt issued for cotton stored in a warehouse is not necessary to transfer, title to the cotton for which the receipt was given, from the holder. thereof to a third person to whom the receipt is delivered.
 4. Action against railroad company for negligent burning of cotton; admissibility nfr aral1n --I an action against railroad company to re- cover damages for alleged negligent burn ing of cotton, which was stored in a ware house and which was evidenced by ware house receipts in the possession Of the bplaintifr, it is no objection to the introduc- tion in evidence of the receipts held by the plaintiff that they were issued to another party and were delivered to the plaintiff without endorsement;, 1t being shown that the cotton evidenced by such warehouse receipts was purchased for plaintiff by the party In whose name they were issued and by whom they were de- lvered to the plaintiff.
 5. Same; same.-In such a case, it is no objection to the introduction in evidence of the warehouse receipts held sby the plaintiff, that the name of Fthes ware houseman was signed to suchsreceipt pts by another party; such receipts having been signed and issued by said other party un- der the personal supervision and direction of the warehouseman. t~
 6. Action against railroad company for damages by fire; admissibility of evidence as to volume of sparks, etc.-In an action against a railroad company to recover damages for the burning of cotton al- legged to have been caused by the negli- gent escape of sparks from locomodve running on the defendants road, 1t is competent to show the volume OF sparks emitted by said engine and the height to which< said sparks were thrown while switching cars near to and by the ware house where the cotton was stored about the time the fire occurred. ~a s"t
 '. Same; admissibilfty of evidence that said engine caused other fires.-In such an action. here the defendant introduced evidence tending to show that the spark alleged to have caused the fire were ex- amined after the fire and found to be in good condition and were of the kind in use upon well regulated railroads, 1t is competent for the plaintiff to introduce evidence that at the same place where the cotton involved in the suit was purn- cd and a short time thereafter, while said damaged cotton was left on the grounds near the defendants railroad, such dam aged cotton was several times ignited by the emission of sparks from the same en- zine from which the sparks were emitted which ignited the cotton in question.
 S. Same; admissibilty of rule of com 'pany in evidence.-In an action against a railroad company to recover damages for destruction of cotton by fire. alleged to have been caused by the negligent escape of sparks from a locomotive running on defendants road, and there is shown no contractual relation between the plaintiff and the defendant. the degree of care in the operation of the engine by the detend- ant in ordr to prevent the destruction or plaintiffs property by the emission of sparks, is that of an ordinarily prudent