Wyatt v. Seaboard Air Line Railway Co.

72 S.E. 383, 156 N.C. 307, 1911 N.C. LEXIS 178

• Court: Supreme Court of North Carolina
• Decided: October 18, 1911
• Status: Published

Opinion

AlleN, J.,

after stating the case: The uniform rule, prevailing under our present system, is that the allegations of a pleading shall be liberally construed with a view to substantial justice between the parties, and that every reasonable intendment is made in favor of the pleader. Brewer v. Wynne, 154 N. C., 472.

The just application of this rule tends to the trial of cases upon their merits, and we would not be justified in relaxing it in a ease like this, where there has been a trial before a jury, and both parties have had full opportunity to present their evidence.

It would require a very strict construction of the allegations of the complaint to give it the meaning contended for by the defendant, to wit, that it only alleges negligence in the operation of the train.

If we give to the pleading every “reasonable intendment in favor of the pleader,” and “construe it liberally,” as our authorities require, the negligent act alleged in the third paragraph of the complaint is that the defendant “negligently and carelessly permitted said engine to emit sparks and coals of fire therefrom, wbicb fell on plaintiff’s property, etc.”; and the preceding language, “in operating and running an engine,” merely indicates where the engine was, and what was being done with it, at the time of the negligent act.

If so, it was competent for the jury to consider evidence of defects in the engine under the allegations of the complaint.

The defendant’s counsel presented his contention as to the contributory negligence of the plaintiff with much force and ability and cited authority from eminent courts in support of his position.

We do not, however, agree with him that the weight of authority sustains his view, and we think his Honor held correctly that there was no evidence to sustain the plea.

The buildings, which were destroyed by fire, were on the land of the plaintiff, adjoining the right of way of the defendant, and the negligence alleged is that the plaintiff failed to repair them, and had permitted the roofs, where the fire began, to become rotten and highly inflammable.

The buildings had been erected about eighteen years, and there is no evidence they were ever ignited prior to the time they were destroyed.

As the buildings were not on the right of way, and there is no evidence that fire caught in combustible matter on the right of way and was communicated to them, the plaintiff could not recover unless he succeeded in proving that the engine of the defendant was defective or that it was negligently operated. Williams v. R. R., 140 N. C., 624.

If so, to hold that a failure to repair is contributory negligence would require the plaintiff to foresee the negligence of the defendant and to provide against it.

We think the contrary is the rule, and that the plaintiff .had the right to assume that the defendant would perform its duty, and that it would not operate an engine negligently or one that was defective.

“The general rule is that every person has the right to presume that every other person will perform his duty and obey the law, and in tbe absence of reasonable ground to think otherwise it is not negligence to assume that be is not exposed to danger wbicb can come to bim only from violation of law or duty to sucb other person. Hence failure to anticipate defendant’s negligence does not amount to contributory negligence, even though he places his property in an exposed or hazardous position.” Cyc., vol. 29, p. 516.

“Since a person is not required to anticipate the negligence of another, ■ he will not be guilty of contributory negligence because the injury results in part from the defective condition of the property, or because its condition is such as to render the danger greater.” Ib., 526.

Again it is said in Cyc., vol. 30, p. 1343: “As a general rule, an owner of land has a right to use it in the ordinary and usual way and is not bound to remove dry grass, weeds, leaves, or other combustible material from his land adjoining a railroad right of way, in anticipation of probable negligence on the part of the railroad company, and a failure to perform such acts will not make him guilty of contributory negligence so as to preclude a recovery for damages caused by a fire originating through the railroad company negligence.”

The following authorities, among many others, sustain the text: Salmon v. R. R., 38 N. J. L., 12; R. R. v. Ins. Co., 82 Miss., 779; Hendrick v. Towle, 60 Mich., 371; Walker v. R. R., 76 Kan., 34; R. R. v. L. Co., 125 Ala., 261; Matthews v. R. R., 121 Mo., 334; R. R. v. Short, 110 Tenn., 718; Kalbfleisch v. R. R., 102 N. Y., 521; R. R. v. Burger, 124 Ind., 278; R. R. v. Schultz, 93 Pa. St., 345; R. R. v. Jones, 86 Ind., 500; R. R. v. Medley, 75 Va., 506; Coswell v. R. R., 42 Wis., 199; Snyder v. R. R., 11 W. Va., 28.

We quote from only two of them.

In the case from Pennsylvania, the Court says: “Again, complaint is made that the court refused to instruct the jury that if either Schultz or the owner of the strip lying between his land and the railroad allowed the accumulation of dry leaves, brushwood, and other rubbish on his property, which would be readily fired by sparks ordinarily issuing from a prop erly equipped locomotive, tbat might be regarded as contributory negligence. This was certainly an extraordinary proposition: first, because the learned judge throughout the trial held that if the defendant’s locomotive was properly equipped with spark-arresting appliances, the plaintiff could not recover, whether he had been careful or negligent; second, because it is an attempt to impose upon property owners along the line of a railroad duties unknown and unnecessary before the building of the road; and, third, if this proposition means anything, it means that upon such property owners devolves the duty of guarding against the negligence of railroad companies and their servants; but this is simjply absurd.”

And in the Michigan case: “The obligation of care to prevent the fire from the defendant’s engine burning the plaintiff’s mill rested upon the defendant, and the fact that old, combustible matter accumulated about the mill and in near proximity to the railroad cannot be urged as contributory negligence on the part of the plaintiff. He had a right to use the offal of his mill to fill up the waste and low places with, just as he was accustomed to do before the railroad was built. He was not obliged to guard his premises to relieve the defendant from liability for his negligent acts.”

The same principle has been recognized in Phillips v. R. R., 138 N. C., 19: “The owner of premises is not bound to anticipate negligence of a railroad and, by way of prevention, make provision against communication of fire.”

Opinions of witnesses as to value of land, houses, etc., have been very generally received when the witnesses, by experience and information, are qualified to speak, and we think there was no error in their admission in this case. 1 Wig. Ev., secs. 714-720; Whitfield v. Lumber Co., 152 N. C., 214.

It is true that in estimating value as an element of damage, the jury is restricted to the time of the injury, as his Honor held, but a witness may speak of value at other times as bearing on the value when the injury occurred.

The evidence as to reduction in the valuation of the property for taxation after the fire was properly excluded. Ridley v. R. R., 124 N. C., 37; R. R. v. Land Co., 137 N. C., 330.

It was tbe act of tbe officers of tbe law, wbicb tbe plaintiff could not control, and tbe tax lister testified tbat be bad no recollection of tbe amount of tbe reduction asked for bj the plaintiff or bis agent.

We have examined with care tbe entire record, and find

No error.