Dent v. South Bound R. R.
Dent v. South Bound R. R.
Opinion of the Court
The opinion of the Court was delivered by
The appeal herein is from a judgment entered up in favor of the plaintiffs in two actions consolidated by order of the Court. The complaint in the first action was for damages by fire to a -tract of land known as ■the Ramsey tract and the Home Place. The complaint in the second action was also for damages by another fire to a tract of land known as 'the Douglas tract, or Doss Flat tract. Each of -the complaints set forth two causes -of action — one under sec. 1688 of the Revised Statutes and one at common law. Both tracts are situated along the right of way of the defendant in Richland County.
The answers of the defendant in both cases were general denials.
The defendant appealed upon the following exceptions:
“1. Because this being an action for the recovery of damages 'caused to land by burning over the same by sparks from defendant’s engines, his Honor, against the objection of the defendant, allowed the witness, S. H. Dent, to reply to the question, ‘Taking into consideration the value of this land prior to the burning — taking into consideration the land since the burning — taking into consideration the value of the trees and wood and his turpentine trees', and taking into consideration the value of the litter destroyed, what would be your opinion as to the total amount of damages on these two tracts of land ?’ the said question tending -to bring before the jury irrelevant matters -of the value of the turpentine trees and the value of the turpentine contained therein, and the value of the litter upon the land, when i-t is respectfully submitted that the inquiry was limited to the value of the trees, land and all, as land before the fire, and to its value immediately after the fire, and should not have extended the inquiry as to the value of the turpentine or litter.
*332 “2. Because, against the objection of the defendant, his Honor allowed the witness, S. IT. Dent, to answer the question : ‘Q. Taking into consideration the injury done to the timber and to the litter, and in view of the condition of it since the fire, as affected by the fire, what, in your opinion, is the total amount on both of these tracts ?’ when the witness had testified that he had not examined both of the tracts, and when the question brought into the consideration of the jury an irrelevant matter, to wit: the value of the litter, as litter,, which was destroyed by the fire.
“3. Because, against the objection of the defendant, the Court allowed the witness, W. IT. Frost, to testify as to his-opinion as to the damages done, taking into consideration the value of the litter upon the land, and also as to- the value of 'the turpentine destroyed, when it is respectfully- submitted that question was irrelevant and incompetent.
“4. Because, against the objection of defendant, his Honor allowed the witness, George Taylor, to- testify as an expert as to his opinion as to the damage done to saw timber on lands in dispute, when it was shown that the said George Taylor bad no- -special knowledge.
“5. Because, against the objection of the defendant, the plaintiff, W. H. Dent, was allowed to testify in response to-the question, ‘What damage has been caused by this fire to-your timber and the land ?’ When, it is respectfully submitted, that the inquiry was limited to the damages done- to- -the land as land with th-e timber standing on it, and that said question was irrelevant and incompetent.
“6. Because, against the objection of the defendant and during th-e progress of the trial, the plaintiffs were allowed to amend one of their complaints so as to charge the fire as-having occurred on the 31st day of May, when it was alleged to have occurred on the 31st day of March, and the defendant was misled and not prepared with proof as to a fire which had -occurred on the 31st day of May.
“7. Because his Honor, the presiding Judge, having allowed the amendment, refused to allow the defendant *333 further time for the preparation of its case and to ascertain and establish the facts with reference to the fire which occurred on the 31st day of May, 1900.
“8. Because his Honor charged the jury as follows, to wit: ‘I do not think the true measure of damage is the market value. I think the plaintiffs are entitled to the property as it stood before the fire, and if you will ascertain the value of the property before it was burned, that is the measure of the value, as I understand it. You are to consider the location, the contour of the land, its location, the location of the trees. Trees may be useful in one place and more or less useful -in another place. You are to consider ■ all these matters, and say w'hat it is worth, how much the plaintiff has been damagedwhen it is respectfully submitted that the question of the difference between the market value of the land before and after the fire was the real question for consideration by the jury, and the instruction was calculated to make the jury believe that they might take into consideration fanciful estimates as to the value of the lands.”
The appellant’s'attorney in his argument thus succinctly states the question presented'by five of the exceptions, to-wit: “The first, second, third, fifth and eighth may be classed under one head, and that is that it was error for his Honor, the Circuit-Judge, to admit the testimony as to the value of turpentine trees, the value of turpentine in the boxes thereon, and the value of litter upon the land, irrespective of their connection with the freehold, and in not limiting the jury in their estimate of the difference in value of the realty, considered as such, before and after the fire.”
The allegations of the second cause of action in said complaint, which are material, are set forth in the third paragraph, which is as follows: “3. That on or about the 22d day of March, 1900, the defendant carelessly and negligently omitted to use proper appliances to prevent the emission of sparks from its locomotives, and on said day, in running its locomotive through the said tract of land, negligently permitted said locomotive to emit and let out sparks and fire into the dry grass and combustible material in and along its right of way, whereby the same was ignited and the fire spread to the said tract of land and burned over about fifty acres of the same, destroying much valuable timber, many growing trees, including a large number of turpentine boxes, and all the vegetable matter, undergrowth, straw and leaves which had accumulated for years thereon, and upon which the value and fertility of the said land to a large extent depended, to the damage of the plaintiffs $1,200.”
The allegations of the first and second causes of action in the second of the complaints, are similar to' the foregoing, except as to dates, description of the land, and amount of damages. The respondent’s attorney makes the following preliminary objection to the consideration of the first, second, third and fifth exceptions, to wit: 1st. That the question propounded to the witness in the first exception was not answered, and', therefore, the exception has no foundation in fact. 2d. That the grounds of objection to the testimony set out in the other 'exceptions were not stated, and, therefore, can riot be considered by this Court, and relies upon the following cases to sustain the second objection: *335 Allen v. Cooley, 53 S. C., 80; Norris v. Clinkscales, 59 S. C., 243; Youngblood, v. R. R. Co., 60 S. C., 13. But waiving these objection's, the exceptions can not be sustained. Sec. 1688 of the Revised Statutes is as follows: “Every railroad corporation shall be responsible in damages to any person or corporation whose buildings or other property may be injured by fire communicated by its locomotive engines, or originating within the limits of the right of way of said road, in consequence of the act of any of its authorized agents or employees, except in any case where property shall have been placed on the right of way of such corporation unlawfully or without its consent; and it shall have an insurable interest in the property upon its route for which it may be so held responsible, and may procure insurance thereon in its own behalf.” In construing this section, Mr. Justice Jones, delivering the opinion of the Court in Dean v. R. R. Co., 55 S. C., 504, says: “The language of the first clause of this statute Is sufficiently comprehensive to embrace any kind of property, real -or personal, that may be injured by fire,” thus showing that damages are recoverable under the statute for injury to such property as is described in the complaint; While the case of Hunter v. R. R. Co., 41 S. C., 86, decides that damages are recoverable at common law upon such facts as are alleged in the second cause of action.
*337
The last exception to be considered is the seventh. The foregoing order also shows that the Circuit Judge properly refused the appellant’s request for further time. This exception is likewise overruled.
It is the judgment of this -Court, that the judgment of the Circuit Court be affirmed.
Reference
- Cited By
- 18 cases
- Status
- Published
- Syllabus
- 1. Railroads — Damages—Fire.—Under Rev. Stat., 1688, and at common law, a railroad company is responsible to land owner for damages to land by destruction by fire from its locomotives of timber, growing trees, turpentine boxes, vegetable matter, undergrowth and litter. 2. Pleadings — Evidence.—Ie Irrelevant or Redundant Allegations be permitted to remain in a pleading, they may be supported by proof, and evidence offered for that purpose should not be ruled out on objection. 3. Evidence — Fire.—Damages to land by burning is the difference in the value of the land before and after the fire, and this may be shown by proof of value of trees, turpentine boxes, vegetable matter, undergrowth and litter destroyed. 4. Evidence — Opinion—Fire.—Da.mages to land by fire may be shown ■ by the opinion of witnesses who have knowledge of the facts. 5. Amending PeEadings. — Order amending complaint so as to allege fire on May 31, instead of March 31, and going on with trial, sustained, as not misleading defendant to his prejudice in maintaining his defense.