Cin., N. O. & T. P. Ry. Co. v. Sadieville Milling Co.

• Decision Date: 15 March 1910
• Citation: 137 Ky. 568
• Parties: Cin., N. O. & T. P. Ry Co. v. Sadieville Milling Co.
• Court: Kentucky Court of Appeals

Page 568

137 Ky. 568

Cin., N. O. & T. P. Ry Co. v. Sadieville Milling Co.

Court of Appeals of Kentucky.

March 15, 1910.

Appeal from Scott Circuit Court.

R. L. STOUT, Judge.

Judgment for plaintiff, defendant appeals. — Reversed.

BRADLEY & BRADLEY and JOHN GALVIN for appellant.

B. M. LEE for appellee.

OPINION OF THE COURT BY WM. ROGERS CLAY, COMMISSIONER — Reversing.

Charging that appellant, Cincinnati, New Orleans & Texas Pacific Railway Company, had negligently burned its barn and certain personal property therein contained, appellee, Sadieville Milling Company, brought this action to recover damages. The jury awarded appellee the sum of $337. From the judgment based thereon, this appeal is prosecuted.

It is earnestly insisted by counsel for appellant that the trial court erred in refusing to award it a peremptory instruction. In view of the conclusion of this court, it will be necessary to determine only the propriety of the trial court's ruling in that particular.

The facts are as follows: Appellee's mill and grounds adjoin appellant's right of way. The tracks of the railway run north and south, and are located on the top of a fill. There are two tracks: The main track about 22 feet from the edge of the fill above the barn, and the passing track about 11 feet. At the foot of the fill there is a stone wall. From the edge of the fill to the top of the stone wall the distance is about 50 feet. The stable which was burned is about 20 feet from the wall. The space between the wall and the stable is occupied by a road. The railway tracks are about 30 feet higher than the ground on which the stable stands. The ridge of the roof of the stable runs parallel with the tracks. The stable was constructed of oak lumber; it had a tin roof, a portion of which had been blown off at the time of the fire. The loft of the stable was filled with hay. There was testimony to the effect that the barn where the roof had been blown off was burning when the fire was discovered. There was also testimony to the effect that the barn was not burning at this point when the fire was first discovered by another witness, but was burning in the north end; that is, on the side opposite from the railway. The fire was discovered about 4 o'clock in the morning. The only trains that passed that night near the time of the fire were a southbound freight which went by at 3 o'clock and did not stop; a train which came in at 1:19, stopped, and left at 2:18; one which came in at 1:50, stopped, and left at 2:13, and one which went through at 1:23, and did not stop. As to the cause of the fire, the evidence for appellee is to the effect that both before and after the fire, engines were seen passing by and emitting sparks varying in size from that of a pea to that of a man's thumb. Furthermore, that upon more than one occasion appellant's trains had stopped at that point and cleared out the fire boxes of the engines. When this was done, cinders would roll down the fill towards appellee's barn. It was also shown that the ground around the stable was free from grass or rubbish. The evidence for appellant is to the effect that engine 684, which was hauling the train that passed at 3 o'clock, and which was the only engine passing within an hour and three-quarters of the time of the fire, was equipped with a standard spark arrester, and that this spark arrester was in good condition. The engine was regularly handled.

We think the court erred in admitting evidence of the fact that on more than one occasion engines had stopped at a point near the barn, and had had their fire boxes cleaned out, and that the cinders therefrom would roll down the fill. Even if such a custom on the part of the railroad company could be shown, the evidence failed to disclose such uniformity in the custom as to make it admissible for the purpose for which it was intended. No one testified to the presence of any fresh cinders at the time of the fire, either upon the tracks or at the bottom of the fill. In the absence of such testimony we fail to see how the fact that on several occasions trains had stopped there, and the fire boxes of the engine had been cleaned out, and cinders rolled down the fill, would be competent...