Error
from Kiowa District Court.
ON the
16th of September, 1890, Leila V. McBride commenced her
action against The Chicago, Rock Island & Pacific Railway
Company to recover $ 1,180 and $ 100 attorney's fee for
damages alleged to have been caused by a fire set out on the
4th day of February of the same year. The petition alleged
among other things:
"That
on the 4th day of February, 1889, said defendant controlled
and operated a certain railway known as the Chicago, Kansas
& Nebraska railway, with the track, cars, locomotives and
other appurtenances thereunto belonging, which said railway
runs in and through Kiowa county, in this state. . . . That
or about the 4th day of February, 1889, said defendant, its
agents, servants, and employes, in the operation of and the
running of its trains on its said railway, negligently and
carelessly permitted its locomotive to emit sparks and fire
into the dry grass and weeds along the right-of-way, and the
land adjoining thereto, at or near the town of Mullinville
in said Kiowa county, which said sparks and fire ignited and
set fire to the prairie grass and weeds along said
right-of-way and the adjoining lands; which said fire, so
started as aforesaid, spread and burned continuously to and
over the plaintiff's premises above described, burning
the grass on plaintiff's said lands, and in her said
pasture, thereby destroying plaintiff's grazing lands and
damaging plaintiff's fence by burning the posts and wire
thereof; and burning 50 tons, or thereabouts, of
plaintiff's hay in the stack, and burning and killing the
said timber and young trees standing and growing along and
near the said Kiowa creek."
The
railway company filed an answer to the petition containing a
general denial. Trial had before the court with a jury, at
the March term for 1890. The jury returned a verdict in favor
of the plaintiff and against the defendant for $ 678.29, and
$ 100 for attorney's fee. The jury also made the
following special findings of fact:
"1.
Was not said engine, on the day this fire is said to have
occurred, managed in a skillful and proper manner? A. Yes.
"2.
If your answer to interrogatory number one should be
'No,' then please state fully in what particular the
said engine was not skillfully or properly managed. A. .
"3.
Could the defendant or its agents, by the exercise of
reasonable diligence, at or before the time of permitting
said fire to escape, if such was the case, have anticipated
the burning of plaintiff's property, at a distance of 10
miles from the railroad track, as likely to occur, and as the
natural and probable consequence of permitting said fire to
escape? A. Yes.
"4.
Did not the defendant exercise such care and caution in the
use and operation of its engine, at the time said fire is
said to have occurred, as a man of ordinary prudence would
have exercised under similar circumstances? A. No.
"5.
If your answer to interrogatory numbered four should be in
the negative, then please state wherein the defendant failed
to exercise such care and caution that a man of ordinary
prudence would have exercised under similar circumstances. A.
By not burning off right-of-way; defective engine, and fitted
with defective netting in the stack.
"6.
Is it not a fact that the fire and damage to plaintiff was
caused by an accident? A. No.
"7.
Did the fire escape by reason of the engine being out of
repair? A. Yes.
"8.
Did the fire escape because of the negligence of the
engineer? A. No.
"9.
If the jury return a verdict for the plaintiff, they will
state specifically what negligence the defendant was guilty
of, upon which the jury base their verdict -- whether
defective engine, condition of right-of-way, or negligence of
the defendant's servants in operating the train. If on
account of defective engine, state in what particular it was
defective. If on account of the condition of the
right-of-way, state what the defendant did or omitted to do
that constitutes the negligence. If on account of the
negligence of the defendant's servants, state what they
did or omitted to do constituting the negligence of the
defendant. A. By not having right-of-way burned off; also
defective engine; the netting was defective.
"10.
Did not the defendant use such care in the construction
maintenance and use of its property -- the engine in question
-- as a man of ordinary prudence would have used under like
circumstances? A. No.
"11.
If you answer No. 10 in the negative, state what it did or
omitted to do that a man of ordinary prudence would have done
under like circumstances. A. Would have burned off the
right-of-way; would have a perfect spark arrester, and the
best modern engine.
"12.
Is it probable that this plaintiff's property would have
been destroyed by the fire had it not been for the unusual
high wind prevailing on that day? A. No; it is not probable
but it is possible.
"13.
If an ordinary wind had been blowing on the day
plaintiff's property is alleged to have been burned, is
it probable that it would have been destroyed? A. No; it is
not probable, but it is possible.
"14.
If you find for plaintiff, how much damage do you allow per
acre for buffalo grass? A. We allow 15 cents per acre.
"15.
How much damage do you allow for blue stem per acre? A.
Nothing.
"16.
How much damage do you allow per ton for hay? A. 80 cents per
ton.
"17.
How much damage do you allow for trees? A. $ 240.
"18.
If you find for the plaintiff, state fully the amount of such
damages, and for what it is allowed. A. $ 636; timber, $ 240;
grass, $ 306; hay, $ 40; fence, $ 50; interest, $ 42.29;
total, $ 678.29.
"19.
How much do you allow per acre for damages to the
plaintiff's land? A. Nothing.
"20.
What is the distance south from the railway track to the
plowed fire guard? A. About 114 feet.
"21.
How far south from the railway track does the right-of-way
extend? A. 50 feet.
"22.
How far north of the plowed fire guard did the fire start --
about what distance? A. About 65 feet."
On the
14th day of March, 1890, the defendant filed its motion for
judgment upon the special findings of the jury. The plaintiff
filed her motion to amend her petition to conform to the
special findings and verdict of the jury. The motion to amend
the petition was granted, and the motion of defendant for
judgment upon the special findings was overruled. Thereupon,
the defendant filed its motion for a new trial, containing
the usual statutory grounds. This motion was also overruled,
and judgment rendered in favor of the plaintiff and against
the defendant upon the general verdict for $ 778.29, with
costs. The Railway Company excepted, and brings the case
here.
Judgment affirmed.
M. A.
Low, W. F. Evans, and J. E. Dolman, for plaintiff in error:
1. The
court erred in granting plaintiff's motion to amend her
petition to conform to the verdict and special findings of
the jury.
The law
is clearly established by an abundance of authority, that it
is error to permit the introduction of testimony upon an
issue not made by the pleadings. A. T. & S. F. Rld. Co.
v. Rice, 36 Kan. 593; Newby v. Myers, 44 id. 477; Railway Co.
v. Fudge, 39 id. 543; Miller v. C. M. & St. P. Rly. Co.,
41 N.W. 28. It is not true that such an error can be cured by
simply amending the petition after verdict, by setting up
that issue, to conform to the special findings of the jury.
2. What
burden of proof does the statute of 1885 cast upon the
defendant in this case?
The
statute of 1885 was enacted for the purpose of casting upon a
railroad company, whenever a fire escaped from its
locomotive, the burden of proving that its engine was not
defective or out of repair, and that it was properly operated
and properly equipped with the latest improvements for
arresting sparks at the time of setting the fire; the reason
and the only reason for the statute, and the one upon which
this court holds it constitutional, is, that the evidence is
peculiarly within the knowledge and possession of the
railroad company, and that the plaintiff, in all probability,
could not procure it. Mo. Pac. Rly. Co. v. Merrill, 40 Kan.
404; Mo. Pac. Rly. Co. v. Kincaid, 29 id. 654; Bowen v.
Railway Co., 36 Minn. 522; Ft. S.W. & W. Rld. Co. v.
Karracker, 46 Kan. 511.
But can
it be said that the plaintiff is at any disadvantage with the
defendant in procuring evidence as to the condition of the
right-of-way? Certainly not. The permitting of dry grass and
combustible material to accumulate upon the right-of-way is a
fact as much within the knowledge of the plaintiff as of the
railroad company. "It comes neither within the letter
nor the reason of the statute." Bowen v. Railway Co., 36
Minn. 522. See, also, Barbier v. Connolly, 113 U.S. 31; Mo.
Pac. Rly. Co. v. Mackey, 127 id. 209.
It may
be urged that this court has already decided this question in
the cases of Mo. Pac. Rly. Co. v. Cady, 44 Kan. 633, and Mo.
Pac. Rly. Co. v. Merrill, 40 id. 405; but is that true? There
is no question but that caring for the right-of-way is a part
of the operation of a railroad; and that is as far as the
Merrill case attempts to go. The syllabus of the case of Mo.
Pac. Rly. Co. v. Cady, supra, implies that, upon this issue,
the burden of proof is upon the plaintiff. The contention of
plaintiff in error upon this point is supported by the weight
of authority. Bowen v. Railway Co., 36 Minn. 522; Daly v. C.
M. & St. P. Rly. Co., 45 N.W. 611; G. C. & S. F. Rly.
Co. v. Benson, 69 Tex. 407, and cases cited; B. & M. Rly.
Co. v. Westover, 4 Neb. 268.
3. The
court erred in admitting incompetent evidence upon the
condition of defendant's right-of-way.
This
court has held in several cases that...
