The Montgomery advertiser., 1908-02-21
Head Notes of the Decisions
 of fhe Alabnna Supreme Court

s ALABAMA GREAT SOUTHERN RAIL,
 ROAD co. V. PLANTERS WARE-
 HOUSE AND COM. co. Action for Damagcs for Destruction or
 Property by F.re.--tD Decided July
 IS. i907.---fS So. Rep e2).--tHe-
 Hearing denied Dec. ls. 1s0D.
 1. Appeal; record; transcript; time of iling; statutory provisions; rules or court.--supreme Court Rule IS does not 452 and 472, Code 1sss, since while these sections fixes the day when the transcript must be filed, they prescribe no penalty for failure to hle on such a day, nor do they prescribe what shall be the result ot the failure to file, but leave the whole matter to the discre- ton of the court.
 2. same: dismissal of appeal; discre- ton of court.--This court will not dis ure to file the transchipt on the day required by Section 452. Code 1896, where the transcript was filed during the week set tor the hearing of the cause. However. the court will see that the appellee is not prejudiced by a failure to Ale on an earlier day. where appellee shows that he has not had time to examine the transcript on ac- count of delay in filing.
 B. Railroads; operation; fires; inJu- ries caused by; action; pleading; sufh- ciency.--A complaint which alleges that the defendant. its agents or employees negligently set fire to and destroyed certain property belonging to plaintiff on plaintiffs premises in g named town and county, is sufficient
 4. Same.--A complaint which alleges the operation of railroad by de- fendant. that piaintiff owned certain described property situated on plain tins premises. which property was de- stroyed by fire communicated to cer- tain bales of cotton by sparks from de- fendant's engine through tho negli- gence of defendant, it's servants or agents, is not subject to demurrersthat 1t Is uncertain and indefinite.
 5. Same; defenses.--As a defense 10 an action for destruction of property by fire communicated from one of de- fendant's engines to certain cotton and from there to defendants warehouse, q plea which alleges that although there was covered or Apclosed platform for the purpose of storing cotton. the cot- ton was placed on an uninclosed plat form on defendants right-of-way next the track, which was not used for storing cotton: that 1t was not a pIace reasonably safe for the storage of cot- ton, but that there was constant dam ger from sparkss that plaintiff negli- gently failed to remove the cotton to the enclosed part of his warehouse within a reasonable time. but negli. gently permitted it to remain on the platform exposed to danger from ignf- ton. and, that as q result the fire was communicated to the cotton And to plaintiffs other property. is insufficient on demurrer.
 : $. Sane.--A plea alleging that plain tiif was guilty of contrfbutory negli- gence in placing the cotton on an un- enclosed platform where 1t was exposed to the danger Of ire from sparks from defendants engine. that plaintife was warned of such danger by an agent of defendant, and that such contributory negligence was the proximate cause of the destruction of plaintiff's property, Is insufficient as an answer to on ac- ton of damages for destruction by fire.
 [. Same.-A plea alleging that the destruction Of plaintiff's property was caused by plaintiffs contributory neg ligence in leaving cotton on an unen- closed platform near defendants track; that prior to this occurrence fire had been communicated by passing trains to cotton placed there; that plaintiff had knowledge of the same; and had been warned of the danger, and that notwsth standing this and that a high wind was blowing from the track to- wards the warehouse. plaintiff placed his cotton in this exposed position. is insufficient.
 3. Same; precautions against fire.-- The owner of a warehouse near defend ants tracks cannot be held guilty of contributory negligence for a mistake in judgment as to the best method of ext.nguishing a fire, or for failure to keep fire hose in the warehouse to guard against fires set by sparks from passing engines.
 g. A plea alleging that the cotton was liable to be set on fire by defend- ants engine passing~0 defendants tracks and that after the cotton was set on fire plaintiff negligently failed to exercise reasonable diligence or take reasonable precautions to prevent the fire from spreading to the warehouse and thus proximately contributing to the burning and destruction of his property, is insufficient as an answer to an action for the destruction of prop erty by fire.
 Appeal from Greene Circuit Court.
 Heard before Hon. S. H. Sprott.
 Affirmed. Opinion by Simpson. J.
 Tyson, c. J., Haralson. Dowdell, Am derson. Denson and Mcclellan, JJ., con- cur.
 Simpson, J., dissents.
 VEST V. SPEAKMAN.
 Slahder and Assault and Battery.-(De-
 cided Nov. 2S, 1so7..-44 So. Rep!
 lO17)
 1. Action; causes of action; joinder.
 A h VII