Mitchum v. Seaboard Air Line Railway

106 S.E. 769, 115 S.C. 500, 1921 S.C. LEXIS 38

• Court: Supreme Court of South Carolina
• Decided: April 11, 1921
• Docket: 10583
• Status: Published

Opinions

The opinion of the Court was delivered by

Mr. ChiEE Justice Gary. • ’

. This is an action for damages, alleged to have been sustained by the plaintiff through the wrongful acts of the defendant, whereby a fire was communicated from defendant’s locomotive engine to plaintiff’s dwelling, adjacent to defendant’s right-of-way which destroyed the dwelling and its contents.

The defendant denied the allegations of the complaint. The defendant made a motion for a nonsuit at the close of the plaintiff’s testimony, which was refused; also a motion for the direction of a verdict at the close of all the testimony, which was likewise refused.

The jury rendered a verdict in favor of the plaintiff, and the defendant appealed.

1, 2 The first question we will consider is whether there was error on the part of his Honor, the presiding Judge, in overruling the objection to the following testimony of the plaintiff:

“Not long before this fire I saw a locomotive throw out sparks and set fire to the grass on two occasions. One was a freight and the other a passenger train. This must have been about the first of April or the last of March. I was there and put the fire but. At one time the fire was about 25 feet from the house, and the other about 30 feet.”

In the first place, the grounds of the objection are not stated; and, in the second place, the appellant has failed to show that the testimony was prejudicial. It only states an undisputed fact, that grass may be set on fire by sparks from a locomotive engine.

3 The other exceptions assign error in the refusal to grant the nonsuit and to direct a verdict on the ground that the evidence did not warrant a reasonable inference that the fire was communicated by defendant’s locomotive.

The testimony was circumstantial, but it tended to sustain the allegations of the complaint. Therefore the issues of fact were properly submitted to the jury.

Affirmed.

Justices Watts and Fbaser concur.