Ft. Scott, Witchita & Western Railway Co. v. Tubbs

• Decision Date: 09 January 1892
• Citation: 47 Kan. 630,28 P. 612
• Court: Kansas Supreme Court
• Parties: THE FORT SCOTT, WICHITA & WESTERN RAILWAY COMPANY v. M. C. TUBBS

28 P. 612

47 Kan. 630

THE FORT SCOTT, WICHITA & WESTERN RAILWAY COMPANY v. M. C. TUBBS

Supreme Court of Kansas

January 9, 1892

Error from Greenwood District Court.

ACTION by Tubbs against the Railway Company, to recover damages by fire claimed to have been caused by defendant's negligence. Verdict and judgment for plaintiff. The defendant comes to this court.

Judgment affirmed.

J. H Richards, and C. E. Benton, for plaintiff in error; D. B Fuller, of counsel.

R. C Summers, for defendant in error.

GREEN C. All the Justice concurring.

OPINION

GREEN, C.

This was an action brought by M. C. Tubbs in the district court of Greenwood county against the Fort Scott, Wichita & Western Railway Company, for damages by fire, caused, as is claimed, by the negligence of the defendant in the operation of its railroad. The plaintiff alleged that he owned a half-section of land which he used exclusively for the grass grown thereon for hay, and expected to use all of said land for that purpose except about 40 acres, as such land was well adapted for the growing of hay. The negligence of the defendant is stated as follows:

"Plaintiff says that defendant's line of railway runs through, over and across the north part of said plaintiff's land described, and that on the 29th day of October, 1887, the said defendant, contrary to its duty, and negligently and carelessly, omitted to keep its right-of-way on plaintiff's land and on the adjoining land clear and clean of dry grass, weeds, and other combustible material, and on the contrary, negligently and carelessly allowed dry grass, weeds and other combustible material to accumulate and remain on said right-of-way of said defendant's railway, and neglected to plow a fire-guard along said line of railway, and on said right-of-way across plaintiff's land, and across the adjoining land, to prevent the spread of fire, or damage therefrom, in the operation of its said line of railroad; that on the 29th day of October, 1887, the defendant, in operating its line of railway, and running its engines and cars on said line of railway in Greenwood county, Kansas, by and through its servants, employes, and agents, in thereby operating and running said cars and engines thereon, in said county and state, negligently and carelessly permitted said engine of defendant to cast out or emit sparks and coals of fire therefrom, into the dry grass and weeds and other combustible material on defendant's right-of-way, thereby setting out fire and setting fire thereto, and carelessly and negligently allowing the fire thus set out on defendant's right-of-way to escape and spread therefrom to other lands, and finally to plaintiff's land and meadow, thereby burning and injuring plaintiff's meadow, greatly damaging plaintiff, in the sum of $ 1 per acre, or the total sum of $ 275, and without any fault or negligence on the part of this plaintiff, on account of said fire.

"Wherefore, plaintiff asks judgment against defendant in the just sum of $ 275 and costs of suit, and for $ 50 attorney fees, and all other proper relief."

The railway company filed a motion to make this petition more definite and certain: (1) By stating wherein the meadow was damaged; (2) by stating how much, if anything, plaintiff claimed for the burning of the hay growing upon the land; (3) by stating whether damages were claimed for the burning of the hay growing upon the land at the time of the fire; (4) by stating in what manner the land was damaged, if damages were claimed for injury to the realty. This motion was overruled, and exceptions taken. The defendant then filed a general demurrer to the petition, which was also overruled. The defendant afterward filed a general denial, and also set up contributory negligence. At the January term, 1889, a trial was had by the court and a jury, and a verdict was returned in favor of the plaintiff for $ 85. After the return of the verdict, over the objection of the defendant, the plaintiff offered evidence to the court as to the value of attorney's fees in the case, and the court allowed the plaintiff $ 50 as such attorney's fees. Judgment was rendered for the plaintiff for $ 135 and costs. A motion for a new trial was filed and overruled.

Six questions are presented by this record: 1st, Did the court err in overruling the motion of the defendant to require the plaintiff to make his petition more definite and certain? 2d, Did the court err in its instructions to the jury? 3d, Did the court err in refusing certain instructions asked by the defendant? 4th, Did the court render judgment upon a cause of action not made by the pleadings? 5th, Should judgment have been rendered upon the special findings in favor of the defendant? 6th, Did the court err in rendering judgment against the defendant for attorney's fees?

We must answer each one of these questions in the negative, except the last. As to the first, the petition was, we think, sufficient, under P 1321 of the General Statutes of 1889. It might have been more general as to the allegations of damages than it was, and still been good under the statute.

As to the instructions given with reference to the measure of damages, complaint is made of the following paragraph:

"In case you find from the evidence that the plaintiff is entitled to recover in this case, you are instructed that the damages to be awarded him should be such as adequately to compensate him for the actual loss or injury sustained; and in determining the amount of injury, you should consider the nature and character of the land in controversy, the uses to which it was put, the difference, if any, in its rental value; and you may also allow interest on such damage, if any you find, from the date of the loss to the present time, at the rate of 7 per cent."

It is urged that this instruction was misleading; that under no circumstances would the plaintiff be entitled to recover the difference between the value of the land before and after the fire and also the difference in the rental value. Perhaps the decrease in the rental value of the land forms the better and more certain rule by which the damages may be estimated; still the principle has been established, that where the injury is done to the real estate itself, the damages may be measured by the difference in the value of the land before and after the trespass; and, in several cases, the amount necessary to restore the property to the condition in which it was before the trespass is a proper measure of damage. (5 Am. & Eng. Encyc. of Law, p. 36; Wiley v. Hunter, 57 Vt. 479; Carli v. Depot &c. Co., 32 Minn. 101, 20 N.W. 89; Vermilya v. Chicago &c. Rly. Co., 66 Iowa 606, 24 N.W. 234). It is evident from the amount of the verdict that the jury were not misled by the instruction, and hence no prejudicial error was committed.

Upon the third question, complaint is made that the court should have instructed, as requested by the defendant, that the...