Clark v. Kansas City, Ft. S. & M.R. Co.

• Decision Date: 05 May 1904
• Docket Number: 1,247.
• Parties: CLARK v. KANSAS CITY, FT. S. & M.R. CO.
• Court: U.S. Court of Appeals — Sixth Circuit

129 F. 341

CLARK v. KANSAS CITY, FT. S. & M.R. CO.

No. 1,247.

United States Court of Appeals, Sixth Circuit.

May 5, 1904

This action was brought in the state circuit court of Shelby county, Tenn., and removed into the Circuit Court of the United States for the Western District of Tennessee. The object of the suit was to recover damages for the destruction by fire of the cotton seed house or warehouse of plaintiff in error, situated on land adjoining the right of way of defendant in error at the station and village of Clarketon Ark. The fire occurred about 11 o'clock p.m. Sunday night, January 13, 1901, resulting in total destruction of the warehouse and its contents, it being at the time full of cotton seed. The action proceeded upon the ground that the building was set on fire by sparks negligently suffered to escape from fires started and in use on the right of way of defendant in error during the day time of January 13, 1901.

The facts which the evidence established and tended to show need only be given briefly: A gang or crew of railroad hands in the service of defendant in error, while remaining during Sunday on a side track at said station in 'camp cars,' built and started fires on the right of way of the company for the purpose of washing their clothes, and maintained the fires during the day. The warehouse was constructed of plank, with an iron roof, and inclosed by a picket fence, and the doors or gates to the house and picket fence were closed and locked on Sunday night, at the time the building was set on fire. In process of time, as a result of seasoning and shrinkage, small cracks were left between the edges of the planks, through which flying sparks might pass and come in contact with the contents of the building. One of these fires was as close as 40 feet to the house, while another was about 140 feet away. The wind was from the southwest, and in the direction of the warehouse from the fires, and blowing with a velocity of 15 miles an hour. There had been no fire in the warehouse or on the plaintiff's premises during the day. During the forenoon of Sunday agents of the plaintiff called the attention of the station agent and also the timekeeper of the gang to the fact of the fires, and the danger to plaintiff's property in consequence of the escaping sparks.

The defendant's evidence only tended to show that the fires were not so large and the velocity of the wind not so great as stated by witnesses for plaintiff, and that the wind was not constantly in the direction of the warehouse. The station agent, Slagle, denies any recollection of his attention being directed to the fires and the danger by either Madden or Willard, the agents of plaintiff in error. Besides this there was nothing material in the evidence, so far as it is now important. No precautionary action was taken by either party to guard against the danger in relation to the fires, or the protection of the building, beyond what we have stated.

At the conclusion of the whole of the evidence the court, on defendant's motion, directed a verdict in its favor, on which judgment was entered, and the case is brought here on error for review.

Carroll, McKellar, Bullington & Biggs, for plaintiff in error.

C. H. Trimble, for defendant in error.

Before LURTON and RICHARDS, Circuit Judges, and CLARK, District Judge.

CLARK District Judge, after making the foregoing statement, .

The liability of the defendant, as determined under common-law rules, is supposed to be changed or affected by statute, as found in the Code of Arkansas (section 7362, Sand. & H.Dig.), which is as follows:

'If any person shall set on fire any grass or other combustible material within his enclosures, so as to damage any other person, such person shall make satisfaction in single damages to the party injured, to be recovered by civil action in any court having jurisdiction of the amount sued for; but if such person shall, before setting out the fire, notify these persons whose farms are adjoining said place which he proposes to burn, that he is going to fire such grass or other combustible matter, and shall use all due caution to prevent such fire from getting out, to the injury of any other person, he shall not be liable to pay damages, as provided in this section.'

It is quite clear, we think, that the statute is not applicable to a case like the one with which we are here dealing, and that the subject of this enactment may be dismissed, as the case is controlled in its result entirely by...