47 P. 625 (Kan.App. 1897), 72, The Union Pacific Railway Company v. Lipprand

Docket Nº:72
Citation:47 P. 625, 5 Kan.App. 484
Opinion Judge:GILKESON, P. J.
Party Name:THE UNION PACIFIC RAILWAY COMPANY v. RICHARD LIPPRAND
Attorney:A. L. Williams, N. H. Loomis, and R. W. Blair, for plaintiff in error. Geo. W. Holland, and William B. Sutton, for defendant in error.
Case Date:January 04, 1897
Court:Court of Appeals of Kansas
 
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Page 625

47 P. 625 (Kan.App. 1897)

5 Kan.App. 484

THE UNION PACIFIC RAILWAY COMPANY

v.

RICHARD LIPPRAND

No. 72

Court of Appeals of Kansas, Northern Department, Western Division

January 4, 1897

January 4, 1897.

Error from Russell District Court. Hon. W. G. Eastland, Judge. Reversed.

Judgment reversed and cause remanded.

A. L. Williams, N. H. Loomis, and R. W. Blair, for plaintiff in error.

Geo. W. Holland, and William B. Sutton, for defendant in error.

OPINION

GILKESON, P. J.

The defendant in error, Richard Lipprand, brought this action as plaintiff to recover damages sustained by him

Page 626

from a fire alleged to have been negligently set out by the defendant, plaintiff in error. The allegations of negligence in the petition are as follows:

"On the twelfth day of March, 1893, the said defendant, while running one of its trains on its road in Russell County, managed its train carelessly and negligently, and failed to employ suitable means to prevent the escape of fire from the engine that was used in running the train--the same being a freight train going west-- on or about the afternoon of the date aforesaid. And the defendant carelessly and negligently permitted dead and dry grass and other combustible material to collect and remain on the right of way and land of said defendant, and also allowed dead and dry grass and other combustible material to remain and collect near the track of the road of the said [5 Kan.App. 485] defendant, so that, by reason of the carelessness and negligence hereinbefore set forth, fire escaped from the engine of said Company used in running the train aforesaid, and set fire to the dry and dead grass and other combustible material on the right of way and other lands of the said Company; and, by means of a continuous body of dry grass and other combustible material, the fire was communicated, without any fault of the plaintiff, to the premises of the plaintiff, and then and there burned and destroyed," etc., etc.

On the trial the jury returned twenty-nine special findings. Those as to the condition of the engine, the escape of the fire, and the management of the train, were as follows:

1. "Was not Frank Schuyler the engineer in charge of engine 712, attached to train No. 11, on March 12, 1893? A. Yes.

2. "Was not Chas. Petrie the fireman on that train? A. Yes.

3. "Was not Mr. Schuyler a careful and competent engineer? A. Yes.

4. "Was not Mr. Petrie a careful and competent fireman? A. Yes.

5. "Were not Mr. Schuyler and Mr. Petrie both performing their respective duties properly when the train passed between mile-posts 250 and 251? A. For the want of sufficient evidence we can't say."

7. "Did the fire which damaged plaintiff's property start from an engine belonging to defendant? A. Yes.

8. "If you answer the last question in the affirmative then state the number of the engine from which the fire started? A. 712.

9. "Was not engine 712 furnished with well-known, improved and reasonably safe appliances to prevent the escape of fire or sparks? A. Yes.

10. "Were not all of said appliances in good order and proper position on March 12, 1893? A. For want of sufficient evidence we can't say.

10 1/2. "Is it possible to construct and equip a [5 Kan.App. 486] locomotive so as to entirely prevent the escape of sparks and fire and furnish draft sufficient for the engine to do its work when it is carefully and...

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