Illinois Cent. R. Co. v. Scheible

• Decision Date: 03 February 1903
• Citation: 72 S.W. 325
• Parties: ILLINOIS CENT. R. CO. v. SCHEIBLE.
• Court: Kentucky Court of Appeals

72 S.W. 325

ILLINOIS CENT. R. CO. v. SCHEIBLE.

Court of Appeals of Kentucky.

February 3, 1903

Appeal from circuit court, Hardin county.

"Not to be officially reported."

Action by G. C. Scheible against the Illinois Central Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

W. F Marriott, J. M. Dickinson, and Pirtle & Trabue, for appellant.

L. A Faurest, for appellee.

NUNN J.

This appeal is from a judgment of the Hardin circuit court for $400, in favor of appellee against appellant, for the loss of rails, posts, fruit trees, and timber trees. It was alleged by the appellee that this loss was occasioned by five different fires started by defendant's engines; all of the fires having occurred between April 8, 1901, and August 21, 1901. The appellant admits four of the fires--the small ones--doing damage to the extent of $67.43. Appellant states that no report of the fires was made at the time, and it was unable to ascertain the engines from which the sparks were emitted, and for that reason could introduce no evidence as to the condition of the engines. But appellant claims that the fire which caused the only considerable damage occurred on April 9, 1901, and was caused by one or the other of two engines, No. 4 or 363, and that it was conclusively shown that at that time said engines were furnished with the most perfect screens and spark arresters, and that they were in perfect order; and appellant further claims that the lower court erred to its prejudice in permitting appellee to prove by many witnesses that appellant's engines, shortly before and during the time he claimed to have sustained the losses, emitted large quantities of sparks and cinders and started and caused many fires along its road on and in the vicinity of appellee's farm, and that cinders from the size of a pea to the size of a man's thumb cover the ground along the track, and out beyond appellant's right of way, on and in the vicinity of appellee's farm; and he cites two authorities to support his contention. One is the case of N. N. & M. V. R. R. Co. v. Terry, 16 Ky. Law Rep. 316, which is not reported in full, and is an opinion by the superior court, and which seems to support appellant's contention. The other is the case of L. &amp N. R. R. Co. v. Dalton (Ky.) 43 S.W. 431--opinion by Judge Haselrigg. As we understand this opinion, it is against appellant's position. The court in that opinion used this language: "Before liability can be fastened on the company for want of proper screens on its engines, or because of their defective condition, there must be some evidence to show such want or defective condition--such as that an unusual quantity of live sparks were being emitted while the train was going at an ordinary rate of speed, or the same engine started several successive fires on the same trip, or the like. In the case before us there is no evidence or circumstance of this character to rebut the testimony of a number of witnesses for the company who testified as to the perfect condition of the appliances after a thorough examination immediately after the fire." In this case the evidence of the witness Hart shows that one of these engines started a fire on the same day, very near the fire complained of; and there is much proof in this case that the engines of appellant, during the time...