McGLELLAN, J.
— The cause of action relied on for a recovery is the negligent destruction of plaintiff’s cotton by fire communicated thereto. The cotton was located on a platform very near the defendant’s tracks in Evergreen.
The argument, based on the demurrers to the fourth, fifth, and six counts, cannot be sustained. The counts plainly impute the communication of the fire to the plaintiff’s cotton in consequence of the negligence of the defendant. The further averment that the damage suffered by the plaintiff “by reason of said fire” took nothing from the antecedent allegation of negligent ■communication thereof to the plaintiff’s cotton. In fact, under these counts of the complaint, there could have been no more apt description of the consequence ■of the alleged negligent communication of the fire than that employed. The negligence imputed is one thing, and the effect thereof, to plaintiff’s damage, quite another. If “cause” and “effect” were the same thing, the argument indicated would be well taken. The ascription of the “cause” to the negligence of the defendant and the “effect” to the “said fire,” communicated as averred, are not susceptible of the construction urged for appellant.
Counsel for appellant insist that count 3 stated no cause of action, and that hence it was prejudicial error to refuse the affirmative charge requested by the defendant. The basis for the insistence is that count 3, omitting not presently important features, alleges: “That plaintiff owned 14 bales of cotton near to said railroad; that the defendant negligently caused or allowed said [149]*149cotton to be greatly damaged or destroyed by means of fire communicated from or by means of said locomotives.” It is urged that the alternative averment “caused or allowed” rendered the count equivocal within the principle applied in L. & N. R. Co. v. Orr, 121 Ala. 489, 26 South. 35, and in Southern Ry. Co. v. Bunt, 131 Ala. 591, 32 South. 507 and others to like effect. A construction of the count, and that with reference to the rule of disfavor to the pleader, is of course necessary, and to do so satisfactorily the whole count must be considered. A segregated portion thereof cannot be taken and the construction controlled thereby. It is also essential to take into account, in the construction of pleading, the law applicable to the status made by the allegations of the count, plea, etc. The count in question seems to have been taken, at least as respects the alternative averment, from A. G. S. R. R. v. Johnston, 128 Ala. 283, 286, 29 South. 771. The demurrers assailing the count, and which,were overruled, were, perhaps, sufficiently definite to raise the inquiry noAV presented; but, aside from the affirmance entered there, the court does not seem to have passed on the matter. It may be the ruling on the demurrer was not urged as error. As now appears we do not think the last-cited decision authority on the question in hand. In the vital respects the third'count clearly expresses three ideas: First, that the plaintiff was OAvner óf 14 bales of cotton located near defendant’s railroad; second, that it was damaged or destroyed; and, third, the means of such damage or destruction Avas fire from a locomotive of the defendant.
The word “allow” has many meanings. Its meaning* here as often, is controlled by the context. As here employed it is synonymous with “permit,” one of its accepted meanings, and familiarly so in common parlance. [150]*150When so- read the averment is that the. defendant negligently caused or permitted the damage or destruction of property by means of fire communicated from a locomotive: There can be no sort of doubt that a duty rests on a railroad to use due care to “prevent,” not to “permit,” the communication of fire necessarily employed in the propulsion of its locomotives. This is true from the very nature of the case. Such institutions must use fire. It is, of course, a dangerous agency. The degree of reasonable care is commensurate with the danger attendant on the use. Accordingly, the obligation- — the duty — prevails for railroads to observe care, within the rule defined in L. & N. R. R. v. Reese, 85 Ala. 497, 5 South. 283, 7 Am. St. Rep. 66, among other of our decisions to prevent the communication of fire; and the performance of this duty is so jealously enforced chat a prima facie, evidential presumption of its breach is indulged upon proof of the fact of fire being communicated to property by or from a locomotive operated by a railroad company. Indeed, since the use of fire in the operation of locomotives is a right, and damnifying consequences therefrom will not, alone, afford a cause of action to the injured property -owner, nearly if not all of the whole field of liability for fires communicated from locomotives arises from negligent failure to observe due care to restrain -dangerous tendencies of the element. The duty is, in a large sense, negative — preventive — and to breach it omission is among the most usual means. Under this construction of the alternative, is it equivocal? We. think not, and for these reasons.
The principal illustrated in the Orr and Bunt Oases, is, of course, sound. Equivocal averments have no place in pleadings. In the Orr Case the count condemned attempted to impute, disjunctively, wantonness and simple negligence. As has been often ruled here, they can[151]*151not exist in the same act or omission, for the reason that wanton or willful misconduct implies mental action; whereas, that factor is absent in mere negligence. They are hence necessarily distinct colorings of a wrong to another’s injury. The Bunt Case dealt with the alternative, “knowledge or notice,” and this as related to the imputation of wanton or willful misconduct which, to exist, must have, as a predicate, knowledge of the situation on the part of the party charged therewith. The ruling therein turned on the fact that “notice” is not the equivalent of “knowledge.” In Tinney v. Railroad, 129 Ala. 523, 30 South. 623, the ruling was invited by a charge on the effect of the evidence, not on the pleading. It was, however, held that there was no data given the jury in the evidence from which the jury could apply the prima facie, evidential, presumption arising from the negligent operation of the locomotive the only source of negligence ascribed in the complaint, to the exclusion of the elements of presumed prima facie, breach of duty in such cases. The soundness of the conclusion would seem to be beyond doubt. It is hardly necessary to say that the Tinney Case is without bearing in this instance. That the principle underlying the Orr and Bunt Cases is not infracted by the alternative present in count 3 is evident when it is considered that distinct, nonequivalent alternatives were, in both instances employed. As we construe the terms “caused” and “allowed,” noting, as must be done, the context and the stated duty involved, there can be no serious question but that they are synonymous. Such was the view of the Rhode Island court, in Carroll v. Allen, 20 R. I. 144, 37 Atl. 704 where the words “caused” and “suffered” were under consideration, and with ■ reference to the .analogous, in nature, duty of a city to keep its streets in repair. And such Avas the vieAV of District Judge Bil[152]*152lings, in Comitez v. Parkerson (C. C.), 50 Fed.
Free access — add to your briefcase to read the full text and ask questions with AI
McGLELLAN, J.
— The cause of action relied on for a recovery is the negligent destruction of plaintiff’s cotton by fire communicated thereto. The cotton was located on a platform very near the defendant’s tracks in Evergreen.
The argument, based on the demurrers to the fourth, fifth, and six counts, cannot be sustained. The counts plainly impute the communication of the fire to the plaintiff’s cotton in consequence of the negligence of the defendant. The further averment that the damage suffered by the plaintiff “by reason of said fire” took nothing from the antecedent allegation of negligent ■communication thereof to the plaintiff’s cotton. In fact, under these counts of the complaint, there could have been no more apt description of the consequence ■of the alleged negligent communication of the fire than that employed. The negligence imputed is one thing, and the effect thereof, to plaintiff’s damage, quite another. If “cause” and “effect” were the same thing, the argument indicated would be well taken. The ascription of the “cause” to the negligence of the defendant and the “effect” to the “said fire,” communicated as averred, are not susceptible of the construction urged for appellant.
Counsel for appellant insist that count 3 stated no cause of action, and that hence it was prejudicial error to refuse the affirmative charge requested by the defendant. The basis for the insistence is that count 3, omitting not presently important features, alleges: “That plaintiff owned 14 bales of cotton near to said railroad; that the defendant negligently caused or allowed said [149]*149cotton to be greatly damaged or destroyed by means of fire communicated from or by means of said locomotives.” It is urged that the alternative averment “caused or allowed” rendered the count equivocal within the principle applied in L. & N. R. Co. v. Orr, 121 Ala. 489, 26 South. 35, and in Southern Ry. Co. v. Bunt, 131 Ala. 591, 32 South. 507 and others to like effect. A construction of the count, and that with reference to the rule of disfavor to the pleader, is of course necessary, and to do so satisfactorily the whole count must be considered. A segregated portion thereof cannot be taken and the construction controlled thereby. It is also essential to take into account, in the construction of pleading, the law applicable to the status made by the allegations of the count, plea, etc. The count in question seems to have been taken, at least as respects the alternative averment, from A. G. S. R. R. v. Johnston, 128 Ala. 283, 286, 29 South. 771. The demurrers assailing the count, and which,were overruled, were, perhaps, sufficiently definite to raise the inquiry noAV presented; but, aside from the affirmance entered there, the court does not seem to have passed on the matter. It may be the ruling on the demurrer was not urged as error. As now appears we do not think the last-cited decision authority on the question in hand. In the vital respects the third'count clearly expresses three ideas: First, that the plaintiff was OAvner óf 14 bales of cotton located near defendant’s railroad; second, that it was damaged or destroyed; and, third, the means of such damage or destruction Avas fire from a locomotive of the defendant.
The word “allow” has many meanings. Its meaning* here as often, is controlled by the context. As here employed it is synonymous with “permit,” one of its accepted meanings, and familiarly so in common parlance. [150]*150When so- read the averment is that the. defendant negligently caused or permitted the damage or destruction of property by means of fire communicated from a locomotive: There can be no sort of doubt that a duty rests on a railroad to use due care to “prevent,” not to “permit,” the communication of fire necessarily employed in the propulsion of its locomotives. This is true from the very nature of the case. Such institutions must use fire. It is, of course, a dangerous agency. The degree of reasonable care is commensurate with the danger attendant on the use. Accordingly, the obligation- — the duty — prevails for railroads to observe care, within the rule defined in L. & N. R. R. v. Reese, 85 Ala. 497, 5 South. 283, 7 Am. St. Rep. 66, among other of our decisions to prevent the communication of fire; and the performance of this duty is so jealously enforced chat a prima facie, evidential presumption of its breach is indulged upon proof of the fact of fire being communicated to property by or from a locomotive operated by a railroad company. Indeed, since the use of fire in the operation of locomotives is a right, and damnifying consequences therefrom will not, alone, afford a cause of action to the injured property -owner, nearly if not all of the whole field of liability for fires communicated from locomotives arises from negligent failure to observe due care to restrain -dangerous tendencies of the element. The duty is, in a large sense, negative — preventive — and to breach it omission is among the most usual means. Under this construction of the alternative, is it equivocal? We. think not, and for these reasons.
The principal illustrated in the Orr and Bunt Oases, is, of course, sound. Equivocal averments have no place in pleadings. In the Orr Case the count condemned attempted to impute, disjunctively, wantonness and simple negligence. As has been often ruled here, they can[151]*151not exist in the same act or omission, for the reason that wanton or willful misconduct implies mental action; whereas, that factor is absent in mere negligence. They are hence necessarily distinct colorings of a wrong to another’s injury. The Bunt Case dealt with the alternative, “knowledge or notice,” and this as related to the imputation of wanton or willful misconduct which, to exist, must have, as a predicate, knowledge of the situation on the part of the party charged therewith. The ruling therein turned on the fact that “notice” is not the equivalent of “knowledge.” In Tinney v. Railroad, 129 Ala. 523, 30 South. 623, the ruling was invited by a charge on the effect of the evidence, not on the pleading. It was, however, held that there was no data given the jury in the evidence from which the jury could apply the prima facie, evidential, presumption arising from the negligent operation of the locomotive the only source of negligence ascribed in the complaint, to the exclusion of the elements of presumed prima facie, breach of duty in such cases. The soundness of the conclusion would seem to be beyond doubt. It is hardly necessary to say that the Tinney Case is without bearing in this instance. That the principle underlying the Orr and Bunt Cases is not infracted by the alternative present in count 3 is evident when it is considered that distinct, nonequivalent alternatives were, in both instances employed. As we construe the terms “caused” and “allowed,” noting, as must be done, the context and the stated duty involved, there can be no serious question but that they are synonymous. Such was the view of the Rhode Island court, in Carroll v. Allen, 20 R. I. 144, 37 Atl. 704 where the words “caused” and “suffered” were under consideration, and with ■ reference to the .analogous, in nature, duty of a city to keep its streets in repair. And such Avas the vieAV of District Judge Bil[152]*152lings, in Comitez v. Parkerson (C. C.), 50 Fed. 170, where he was dealing with a statute employing the word “cause” in defining “duty and liability.” Of course, in many instances, “cause” implies affirmative action, whereas “permit, suffer o.r allow,” imply omission merely; but where these terms are employed to impute á breach of duty largely negative in nature, and hence preventive, they import the same idea, at least to the extent of accuracy and definiteness for all practical purposes of stating a cause of action. If we take them to be clothed with a different meaning in this instance, it must be in consequence of a disposition to be hypercritical — a disposition not to be encouraged in such practical affairs as the administration of the law. Count 3 stated a cause of action.
The defendant interposed six pleas; the first being the general issue. Pleas 2 to 6, inclusive, were stricken on written and filed motion, embracing grounds that they ’were immaterial, irrelevant, and sought to set up contributory negligence where that defense could not be pleaded. The complaint claimed damages for the ignition and destruction of cotton by fire communicated from a locomotive. The reporter will set out these pleas in his statement of the case. As appears from the plain averment of these pleas, they seek to set up contributory negligence. Each plea is denominated therein to be a plea in contributory negligence. The insistence of counsel for appellant that these pleas set up subsequent negligence within the principle announced and applied in L. & N. R. R. Co. v. Sullivan, 138 Ala. 379, 35 South. 327, is obviously unsound. In the first place, as stated, the pleas themselves bear their own label that they invoke contributory negligence. In the second place it is apparent from their averments that the negligence assumed to be imputed by them was an[153]*153terior to that averred and relied on for a recovery in the complaint. Subsequent negligence on the part of a plaintiff, within the doctrine of the Sullivan Co. Case, supra, can never be predicated upon after negligence of the defendant. The principle in subsequent negligence is that it arose from a breach of duty coming into existence . by reason of the prior negligence of the other party, and the ■ intervention of that duty and its breach operates to break the order of causation, and then requires the ascription of the injury, for its proximate cause, to the breach of the duty last occurring. The doctrine of sub-' sequent negligence has been many times treated in recent cases here. It is not presently necessary to reiterate. So the pleas are, and must be dealt with as pleas of contributory negligence. The court below, as before stated, struck the pleas in response to plaintiff’s mo'-' tion. A majority of the court hold this action to be reversible error. They have prepared their opinion on-this point and it is as follows:
“Dowdell, C. J., and Simpson, Mayfield, and Sayre,' JJ., constituting a majority of the court hold that the defense of contributory negligence may be set up by plea in all cases where simple negligence is counted on in the complaint for a recovery. Johnson v. Birmingham Ry., L. & P. Co., 149 Ala. 529, 43 South. 33, and cases there cited. This seems to be the universal rule, except in those cases where the plaintiff is an infant under the years of discretion, and such facts appearing on the face of the complaint, and as to. Avhom contributory negligence is not imputable. The case of L & N. R. R. Co. v. Marbury, 125 Ala. 237, 28 South. 438, 50 L. R. A. 620, is not opposed to these vieAvs. It was error to strike pleas 2 to 6, inclusive, on motion of the plaintiff. The plaintiff should have been put to his demur-[154]*154r'er in order that the defendant might have the opportunity of meeting the defects pointed out by an amendment of its ¡pleas. — Brooks v. Continental Ins. Co., 125 Ala. 615, 29 South. 13; Troy Fertilizer Co. v. State, 134 Ala. 333, 32 South. 618; Ala. G. S. R. R. Co. v. Clark, 136 Ala. 450, 34 South. 917; Dalton v. Bunn & Allison, 137 Ala. 175, 34 South. 481; Troy Grocery Co. v. Potter & Wrightington, 139 Ala. 359, 36 South. 12; Owensboro Wagon Co. v. Hall, 149 Ala. 210, 34 South. 71; Wefel v. Stillman, 151 Ala. 249, 44 South. 203.” .
The writer is unable to agree to a reversal of the judgment on this point, and these reasons are thought to- be conclusive against the soundness of the view of the majority.
First. Counsel for appellant, in their brief, say, “We concede' the proposition that pleas of contributory negligence are not available as a general rule in. actions of this nature,” and then insist that the pleas set up subsequent-negligence. Since the pleas are of the class to which the quoted concessions relates, the question is: May a party appellant avail himself of an alleged error in the elimination from the case of his pleading by motion- when demurrer (if so) was the proper mode, notwithstanding he confesses the impropriety of his stricken pleading in the character of the action in which he filed it? The'question suggests its own answer, it seems to nie.' ■ The gist of the insistence is that, while my plea was' bad, inapt, you erred in the mere mode of disposing of it. ■ Such a proceeding has all the elements of a speculation with respect to whether the adversary will adopt, and the court approve, one of two methods of assailing inapt pleading, one proper and one improper. Besides, it is not at all certain that a pleader should not be held to have invited the alleged error in mode of procedure to eliminate his confessedly inapt pleading. I [155]*155am unwilling to annul a judgment below on such a state of fact.
Second. Mr. Elliott, in his App. Pro. (section 633), says: “One class is represented by the cases which hold that, where an objection is, taken by a motion when a demurrer would be appropriate, the substitution of one mode of procedure for the other is a harmless error if the result reached is clearly right.”' — Black v. State, 123 Ala. 78, 26 South. 340. No more wholesome, rational doctrine can be found in the books. It is supported by the authorities noted to the cited section. The pleas were patently demurrable. — A. G. S. R. R. v. Planters’ Co., 153 Ala. 241, 45 South. 82; Marbury’s Case, 125 Ala. 237, 28 South. 438, 50 L. R A. 620.
Third. Motion was the proper mode of procedure to eliminate these pleas. — L. & N. R. R. v. Malone was twice considered by this court, viz., in 109 Ala. 509, 20 South. 33, and 116 Ala. 600, 22 South. 897. On the first appeal, as appears from the opinion, the court did not review the action of the court in striking, on motion, the plea of contributory negligence. On the second appeal the question was considered and decided; the. court, through Coleman, J., saying: . “Without formulating a general principle, we are of the opinion that the court did not err in holding that the plea did not present a proper issue, and in striJdng'it from the file.” (Italics supplied.) The Clark Case, cited by the majority, took no account of the express and exactly apt ruling made in the Malone Case on its last appeal. Both the Ciarle and Malone Cases cannot be sound on the point under consideration. It will be noted that the Malone Case rests its conclusion on the fact that the “plea did not present a proper issue.” If such was the case here, under OTir statute (Code, 1907, § 5322; Code 1896, § 3286) the pleas were due to be stricken on motion. They were “irrelevant.” 4 Words & Phrases, pp. 3771, 3772.
[156]*156Did the pleas present a “proper issue?” In the Malone Case the fact that combustible debris was allowed, by the plaintiff to accumulate on the roof of the burned house, near the track on plaintiff’s land, was alleged to have constituted contributory negligence. The court, as before stated, affirmed the trial court in striking this plea. In the Marbury Case cotton stored on plaintiff’s premises was destroyed by fire, from a locomotive, alleged to' have been negligently communicated thereto. The court' held that in so locating his cotton the plaintiff was within his rights, because he was not bound, in the use of his. property, to anticipate negligence on the part of the defendant. Concluding the ruling on the question, the court said: “If destroyed (the cotton) by the negligent act of the defendant, this was the direct and proximate cause. We are aware that in some jurisdictions the doctrine of contributory negligence has been recognized and enforced in this class of cases; but the great weight of authority in this country and in England is decidedly the other way. Upon principal we do not think it has any application to this sort of a case. 8 Am. & Ency. Law, 16, and authorities cited in note 1; Sherman & Redfield on Neg. § 679, and note; note on page 74 of 38 Am. Dec.” The citations made by the court support the conclusion. The only difference, as presently important, between the Marbury Case and the case at bar, is that in the former the plaintiff placed his cotton on his own premises, and in the latter the plaintiff placed his cotton on a warehouse platform, not owned by him (we assume). There is no pretense that this plaintiff had no right to so employ the platform. There is no averment that such action infracted any property right of the defendant. Presumably this plaintiff was entitled to use the platform for storing his cotton thereon. If his use of the [157]*157platform, ' as indicated, was rightful, and that is ■ not gainsaid, except, by the pleas, it is asserted that he was negligent, with knowledge of the danger from fire emitted from locomotives, in so placing his cotton, it is obviously an untenable position to take, viz., that he is without the pale of the influence of the doctrine announced in the Marbury Case. Even counsel for appellant, in their brief before quoted, concede it. Certainly the ownership in fee of the premises cannot alter the principle, viz.,' that one who exercises a lawful right to the enjoyment of property, whether that right flow from full ownership or from lease or hire, cannot be held an insurer of his own possessions against negligent acts of a railroad company in the use of fire on its locomotives — that such ah one is not required to anticipate negligence on the part of the company. If this principle is sound, it applies to the status presented by this record; and, if it applies, there can be no escape from the conclusion thaf pleas 2 to 6 “did not present a proper issue.” Tliey were “irrelevant” within the statute, and hence motion was the proper mode to eliminate them. — Malone’s Case, supra.
Fourth. A reversal of the judgment" below solely because the wrong mode (let us assume for the argument) was employed to effect a right result, viz., the elimination of the alleged defense asserted by the pleas, is, in my opinion, a purely technical reversal; and this is demonstrated when it is considered that upon the return of the cause to the trial court the only act required is to file a demurrer to the pleas, and the same result is attained. — Black v. State, 123 Ala. 78, 26 South. 340. Such a reversal to such a purpose cannot, in my opinion, be justified. No amendment conceivable can render the rightful use by the plaintiff of this platform for the storage of his cotton negligent in respect of omis[158]*158sion to guard against, or in assumption of risk from, uncommitted negligence 'of the defendant occurring subsequent to the placing of this cotton on the warehouse platform.
Aside from the Marbury and Clark Cases, those cited by the majority did not involve the question under consideration. The general rule with respect to when motion, and not demurrer, is appropriate, is not doubted. Its application, in this instance, is the point at issue.
A number of errors assigned relate to the refusal of the court to- permit defendant, on cross-examination of .witness Cunningham, to elicit testimony as to the price for which the damaged cotton was sold, and also the ex: tent of damage in consequence of the fact that the cotton, after the fire, lay on tble ground exposed for 30 days. The witness had testified that the damage to the cotton, from the fire, was about five cents per pound. The only character of damage recoverable under the complaint was that consequent upon the burning. No damage was claimed on any other account. In view of these issues, it is manifest that the proffered testimony was irrelevant. The measure of damages in this action is the difference between the market value before and after the burning. None of the testimony tended to shed light on that issue. Nor were the questions to the witness allowable on the cross as tests of the witness’ credibility. The witness had testified to the value of the cotton in that market. What this plaintiff sold the damaged cotton for was not allied to the testimony of the witness or to- the issue in the premises. There was no error in the rulings indicated.
Plaintiff’s counsel were cross-examining the engineer, who had testified to the proper equipment, construction, and operation of the engine alleged to have set the fire, and in that connection exhibited what is indiffer[159]*159ently called, in the hill of exceptions, spark* cinder, or piece of charcoal, and asked the witness .several questions with the evident view of eliciting testimony tending to show that the spark arrester ivas faulty, Thereupon counsel for defendant objected, to the character.or method of the examination. It was overruled and exception taken. We can perceive no error in this*.,even if the objection was assumed to be serviceable. ■ It was an immediate testing of the witness- upon a vital, fact, about which he had already testified on the examination-in chief, viz., the.size of sparks, etc., possible of emission through a properly constructed and installed spark arrester. . ,
Special charges 12, 14, 15, 16, and 18,, refused .to defendant, are-the basis for as many assignments.-, •.¿Tho^e numbered 14, 15, and. 16 proceed on the idea . that the action is trespass. The counts all of them after, amendment, are in case, for the consequential injury, within the distinction, between trespass and case, announced in City Delivery Co. v. Henry, 139 Ala. 161, 34 South, 389. Charge 12 was outside the issue in the case. .The striking of pleas 2 to 6 eliminated the matter-suggested by this charge. Charge 18 predicates a finding for, the defendant, upon the failure of the plaintiff to take due care to protect his cotton. It was not the duty of the' plaintiff to anticipate negligence on the part of the defendant. The complaint counts on negligent ignition of the cotton. The charge would have turned the verdict without reference to the negligence of the defendant. It was hence bad.
The remaining error assigned arises- out of the refusal of the affirmative charge requested by the defendant. The proof for the plaintiff embraced testimony of a witness who testified that he saw sparks emitted from the defendant’s locomotive set fire to the cotton of which [160]*160plaintiff’s 14 bales was about a tenth. Under the rule declared in L. & N. R. R. v. Reese, supra, and others of our decisions following it, this testimony raised the evidential presumption that the fire igniting the cotton was the result of negligence in the equipment, construction, or operation of the locomotive. The defendant-sought to rebut the prima facie presumption through two witnesses. Assuming, without affirming it, that the defendant’s testimony rebutted the presumption, we are of the opinion that the plaintiff’s evidence, he then being put to proof of negligence in one or more of the respects whereby it may have intervened, to cause the firing of the cotton, rendered the question of negligence vel non one for the jury. The witness Waller testified: “My attention was attracted by a blaze of fire coming-out of the engine. I saw sparks coming out of there, too. I suppose they were as large as a buckshot, or the end of your little finger.' They were in ususual numbers.” Henderson, a machinist, testified that: “Sparks the size of my little finger would not go through a properly equipped engine. Sparks the size of a buckshot would not go through a properly equipped engine.” The witness Cargill testified: That he saw the locomotive, alleged to have started the fire, pass by the cotton. That-he “saAV red hot sparks coming out of the locomotive as it came by the cotton. These sparks Avere as large as No. 4 buckshot.” That he saAV “red hot sparks, but not flames.” That “the sparks Avere pretty thick and in large quantities.” The Avitness Cunningham testified: That he srav “sparks coming out of said engine. The sparks looked very large. They were about as big as the end of your little finger. This engine Avas running along in tAvo or three feet of this cotton Avhen it' Avas throAVing sparks. * * * Fire came out of the engine, too. Sparks fell over the cotton, and the cotton’ blazed up. [161]*161-K- * The defendant’s witness Young testified, on the cross: ' That a “spark the size you are showing me would come out if there was a hole in it” (spark arrester) ; that, if the engine was properly equipped a ■sparks of the size exhibited would not come out. ■ There is nothing we discover in the bill to indicate the size of the-spark or cinder testified about by Young. This was presumably in the presence of the jury. It follows that we cannot review satisfactorily this feature of the evidence.
We have set forth enough of the testimony, though not all, to show that the inquiry of negligence vel non was a jury question. — Southern Ry. Co. v. Darwin, 156 Ala. 311, 47 South. 314.