APPEAL from Holt Circuit Court, HON. H. S. KELLEY, Judge.
Affirmed.
Statement of case by the court.
This is an action to recover damages caused by a fire, alleged to have been communicated to plaintiff's premises by sparks from one of defendant's locomotives. The allegations of the petition are substantially as follows: That defendant's servants and agents negligently and carelessly run and managed the locomotive engine along and near plaintiff's premises so that fire escaped therefrom, and was communicated to grass on defendant's right of way, and thence to plaintiff's premises, and destroyed hay, etc., belonging to him of the value of two hundred dollars; that defendant had negligently, etc., permitted dry and combustible grass to accumulate on and about its road bed, and by reason of the fire escaping as aforesaid this grass was set on fire, and this communicating with the adjacent grass, etc., was communicated to plaintiff's hay. “That by reason of the defendant carelessly and negligently permitting fire to escape from its engine and by carelessly and negligently permitting dry grass and combustible matter to accumulate on its right of way and along the sides of its said railroad at and where said fire so escaped on and to plaintiff's premises, and then and there burned plaintiff's hay, he is damaged two hundred dollars, for which judgment is prayed.”
The answer was a general denial.
At the trial there was evidence tending to show that there was dry grass on and about the railroad track, and that defendant's locomotive passed the point at which the fire broke out shortly before the fire was observed, and that live sparks were seen escaping from the engine, and the fire caught at two or more different places. There was no other evidence of carelessness or negligence proven against the servants of defendant, nor as to the character of the locomotive, than is deducible from the facts aforesaid. Defendant's evidence tended to show that the smokestack and spark-arrester on this engine were in good condition and of the most approved quality in use by skilled and competent railroad men, and were in good order at the time. There was also proof as to the quantity of hay destroyed and its value.
The only instruction asked by the plaintiff was predicated on the negligence of defendant in permitting dry grass to accumulate on its road bed, whereby the fire was communicated, etc. The court of its own motion gave the following instructions:
“1. This is a suit to recover damages for the value of certain hay alleged to have been destroyed by fire, by and through the negligence of the defendant. The negligence complained of in the petition is (1) hat the defendant's agents and servants so carelessly and negligently ran and operated its locomotive engine that fire ecaped from the engine and set fire to the dry grass and other combustible matter on defendants premises near its railroad, near plaintiff's premises in Holt county, and (2) hat defendant carelessly and negligently permitted to accumulate on its right of way and on the side of its railroad track, on and where the fire escaped from the engine as alleged, dry grass and other combustible matter which the fire escaping from the engine set on fire, and thence the fire was communicated to and destroyed plaintiff's hay.”
“2. As to the first ground of negligence mentioned in the first instruction, the court instructs the jury that if they believe from the evidence that while defendant's railroad company was running a train of cars over its railroad fire escaped from its locomotive engine and set fire to dry grass upon the right of way, and the fire was thence carried by the wind to the plaintiff's premises, and burned up and destroyed any quantity of hay of plaintiff, the fact that the fire was set out by the engine is presumptive evidence that it was the result of negligence of the defendant's servants operating the engine and the verdict should be for the plaintiff, unless the jury believe from the evidence that defendant's engine was supplied with the most improved spark-arrester in general use and the engine was carefully managed by careful and skilful hands, in which case the presumption of negligence in operating the engine would be fully rebutted, and the verdict should be for the defendant on the question of negligence in setting out fire by operating the engine.”
“3. As to the second ground of negligence mentioned in the first instruction by the court, the jury are instructed that if they believe from the evidence that the defendant permitted dry grass and other combustible matter to accumulate and remain along the railroad on the side of the track, where the fire in question was set out, in such quantity and quality that it would at that season or time of the year be easily and readily set on fire by the sparks escaping from passing engines, or be likely to be set on fire by such sparks, and that such dry grass and combustible matter was contiguous to or so near to other dry grass and vegetable matter that it would, if set on fire, be likely to communicate the fire to such contiguous matter, the permitting such dry grass and other combustible matter to accumulate and remain on its right of way under such circumstances would be negligence on the part of defendant, and if the fire escaping from the passing engine at the time and place stated in the petition set on fire the said accumulated dry grass and combustible matter on defendant's right of way and the fire was thence carried by the wind to and destroyed the plaintiff's hay, the jury should find for plaintiff and assess his damages at the value of the hay, at the time and place the hay was destroyed.”
“4. If the jury believe from the evidence that there was at the time and place where the alleged fire occurred any unusual or considerable amount of dry grass or combustible matter on defendant's right of way and the probabilities, of fire escaping from an engine igniting and setting such grass and combustible matter, when under ordinary circumstances, remote or not within the range of reasonable probabilities, but among the possibilities, under such circumstances defendant would not be guilty of negligence, and as to the second ground of negligence alleged, the verdict should be for the defendant.”
“10. The plaintiff in this action sues to recover on the ground that the servants of the defendant were guilty of negligence in consequence of which a fire was set out which burned his property. Such negligence is a fact to be proved by evidence like any other fact, and before plaintiff can recover in this action he must show by his evidence to the satisfaction of the jury that defendant, its agents and servants were guilty of negligence in setting out the fire which consumed his property, or in permitting dry grass or other combustible matter to accumulate on the right of way in the manner and to the effect mentioned in the other instructions. In order to sustain the charge that the defendant carelessly and negligently permitted dry grass and other combustible matter to accumulate on its premises, it is not sufficient for the plaintiff to show that short grass, which had been eaten down close by stock, was permitted to remain thereon, but plaintiff must show by his evidence that there was an accumulation of such combustible matter; that such combustible matter could have been burned off, and that it was negligence in the defendant, in the exercise of ordinary and reasonable care, not to burn the same at or before the time when the said fire was set out, which caused the injury complained of.”
“11. The law does not require the defendant to use locomotives which cannot and do not escape fire while in use; but does require that it should use such locomotives and equipments thereof as by actual experience of prudent, skilful, competent railroad men have been found least likely to set fire while in actual use in drawing trains, and to keep the same in good repair, and if the jury find from the evidence that defendant's locomotive, number eleven, was on date mentioned of approved pattern, and in good repair, and run with the ordinary care of a prudent, competent...
