Missouri Pacific Railway Co. v. Kincaid

The opinion of the court was delivered by Brewer, J.:

This was an action brought by defendant in error, plaintiff below, to recover of the railroad company damages for the destruction of some hay, fencing and trees by fire, caused by the negligence of the company in operating one of its trains. The company answered, first, by a general denial; and second, an allegation of contributory negligence. *655 The plaintiff claimed $211. The case was tried before a jury, which returned a verdict of $118. Upon this verdict judgment was entered, and of it plaintiff in error now complains.

We see little in the record calling for extended comment. Nearly every question presented by counsel has been fully covered by prior decisions of this court. That the property was destroyed by fire, and that the fire started close to the railroad track immediately after the passage of one of the defendant’s trains, is beyond dispute. The real questions were, whether there was any negligence on the part of the defendant, and if so, any contributory negligence on the part of the plaintiff. These are of course mainly questions of fact.But one engine was in use on that part of the road which crossed the plaintiff’s farm, which engine made four trips every day — two each way. On the part of the plaintiff, in addition to the fire which destroyed his property, it was shown that two or three fires were started along the track at different times within two or three days thereafter, and immediately after the passage of this engine, and this under such circumstances that the jury might justly-conclude that they were caused by the engine. In addition, one witness testified that he saw fires thereafter, but without indicating when, or under what circumstances.

On the other hand, the defendant offered the testimony of the engineer and fireman, who testified that the engine was properly constructed, with all ordinary appliances for preventing the escape of fire, in good order, and properly handled and managed. They also testified that no other fires than the one in controversy occurred along the road. It may be added that the engineer showed himself to be a man of limited experience in that business, apd was unable to tell how fine was the mesh crossing the smokestack.

The testimony, as it appears in the record, is limited, and not very satisfactory; and still under the prior decisions we do not feel warranted in disturbing the verdict after its approval by the district court. (Railroad Company v. Stanford, *656 12 Kas. 354 ; Railroad Company v. Campbell, 16 Kas. 200 ; Railroad Company v. Bales, 16 Kas. 252 .)

Again, the jury in answer to specific questions submitted by the railroad company, answered that in their opinion the engine was not in good condition, but could not say wherein the defect lay. Their, failure to render a more specific answer is complained of, but we think under the testimony a more exact answer was impossible, and that the one returned was sufficient. (Railroad Company v. Campbell, supra.)

Again, the court charged the jury that this single fire did not of itself prove negligence, but that from the occurrence of a series of fires of a similar nature at or about the same time, when an engine in good order and properly handled does not ordinarily start such fires, the jury might be justified in inferring negligence, although there was no direct evidence as to wherein the negligence consisted, and that it was unreasonable to expect of the plaintiff direct evidence of the specific defect in the engine or its management, as these were matters peculiarly within the knowledge of the defendant. The latter part of this instruction is complained of, but it is almost the very language of this court in case of The Railroad Company v. Stanford, supra. So far as the question' of contributory negligence is concerned, the plaintiff’s hay was stacked some twenty to forty rods from the track, and whether he was guilty of contributory negligence in not suitably protecting it as against fire, was properly submitted as a question of fact to the. jury. (Railroad Company v. Brady, 17 Kas. 380 ; Railroad Company v. Hotham, 22 Kas. 52 ; Railroad Company v. Henigh, 23 Kas. 359 ; Railroad Company v. Owen, 25 Kas. 419 .)

These are all the matters we deem of moment; and in them appearing no error, the judgment will be affirmed.

All the Justices concurring.