Bryant v. Ellis

• Decision Date: 09 December 1927
• Citation: 222 Ky. 272,300 S.W. 610
• Parties: BRYANT ET AL. v. ELLIS ET AL.
• Court: Kentucky Court of Appeals

300 S.W. 610

222 Ky. 272

BRYANT ET AL. v. ELLIS ET AL.

Court of Appeals of Kentucky.

December 9, 1927

Appeal from Circuit Court, Morgan County.

Action by H. H. Bryant and another against J. C. Ellis and others. Judgment in favor of defendants, and plaintiffs move for an appeal. Appeal granted, and judgment reversed.

S Monroe Nickell, of Lexington, Floyd Arnett, of West Liberty and G. C. Allen, of Jackson, for appellants.

W. M Gardner, of West Liberty, for appellees.

DRURY C.

The appellants H. H. Bryant and Bertha Bryant sued the appellees J. C. Ellis, Drury Smithers, and G. L. Brantley for $300 which plaintiffs allege was the value of certain property of theirs destroyed by fire negligently lighted by the defendants. At the close of the evidence for the plaintiffs, the court directed the jury to return a verdict for the defendants, and, from the judgment entered on that verdict, the plaintiffs have entered a motion for an appeal.

The defendants were contractors engaged in the grading of a road in Morgan county known as state project No. 32, and in that work they were using a steam shovel. On April 21, 1924, they were operating this shovel in excavating a cut on the farm of Mrs. Florence Ferguson. On that day a fire started in some broom sedge, grass, and other combustible material on Mrs. Ferguson's farm. This fire spread in that material until it reached the farm of the plaintiffs and burned some fencing and timber belonging to plaintiffs, for which they sought in this suit to recover. Eleven witnesses testified for the plaintiffs, and they make various statements about how near to the shovel this fire originated, about the amount of damage the fire did to the property of the plaintiffs, and about the distance they had observed burning coals or cinders thrown by this steam shovel. Some of these witnesses gave these distances by comparison to the distance to certain objects in and near the courtroom, which, of course, is meaningless to us, but others estimated these distances in feet, and, summing up and averaging the statements made by these witnesses, it appears that at the conclusion of the plaintiffs' evidence they had established that this fire originated about 31 feet from the shovel; that it destroyed property of the plaintiffs worth $575; and that this steam shovel would throw burning coals and cinders 92 feet.

We cannot understand why the court directed a verdict for the defendants, but gather from the brief filed in their behalf that this peremptory instruction was given because the plaintiffs failed to show that the steam shovel was not equipped with an approved spark arrester, that it was not in good order, or that it was being negligently operated. There are some things in the brief that indicate that defendants were contending that sections 782 and 793, Kentucky Statutes, created the liability for communicating fire, and that these sections only applied to railroads. If that was the view taken by the court, and the peremptory instruction was given for that reason, it cannot be approved. Sections 782 and 793 did not create the liability for communicating fire. That liability already existed at common law. Indeed, one of our fundamental maxims is, "Sic utere tuo ut alienum non lædas." Section 782 was passed for the benefit of the railroads, to provide a degree of care, the observance of which would relieve them from responsibility for the communication of fire, and applies to railroad companies only.

Of course, the defendants had a lawful right, in the grading of this highway, to use a steam shovel, if they saw fit to do so; but, when they did so, it was incumbent on them to use ordinary care to avoid throwing sparks therefrom and setting fire to adjoining property. Fire is a dangerous agency, and the ordinary man is quite careful in the use of it. Parties using machinery operated by steam must use fire to generate the steam; but in the use of such machinery they must use care commensurate with the danger to avoid communicating the fire to adjoining property. In determining the degree of care required in such cases, regard must be had for the character of the season, the weather, the prevailing winds, and the nature of the material near which they are working. Thus ordinary care in a plowed field during a downpour of rain would be negligence during a severe drought and in the neighborhood of dry fodder, stubble, grass, or other tinder. This care is measured by that degree of caution which a man of ordinary prudence would exercise under the circumstances. A very interesting case dealing with the communication of fire by a threshing engine is that of Martin et al. v. McCrary et al., reported in 115 Tenn. 316, 89 S.W. 324, 1 L. R. A. (N. S.) 530. Other cases of interest and instruction are Gillingham v. Christen, 55 Ill.App. 17; McClelland v. Scroggin, 48 Neb. 141, 66 N.W. 1123; Collins v. Groseclose, 40 Ind. 414; Garrison v. Grayvill, 52 Mo.App. 580; Teall v. Barton, 40 Barb. (N. Y.) 137; Dennis v. Harris, 64 Hun, 637, 19 N.Y.S. 524; Holman v. Boston Land & Security Co., 20 Colo. 7, 36 P. 797; Quint v. Dimond, 147 Cal. 707, 82 P. 310.

The burden was on the plaintiffs to establish by evidence that this fire was set by a spark thrown from this steam shovel. That does not mean that the plaintiffs have not made out a case unless they produce a witness who is able to testify that he saw the spark thrown from the smokestack of the shovel, saw it come over, light upon this stubble and ignite it. Such...