Interstate Galloway Cattle Co. v. Kline

• Decision Date: 11 March 1893
• Citation: 32 P. 628,51 Kan. 23
• Parties: THE INTERSTATE GALLOWAY CATTLE COMPANY v. JOSEPH KLINE
• Court: Kansas Supreme Court

32 P. 628

51 Kan. 23

THE INTERSTATE GALLOWAY CATTLE COMPANY v. JOSEPH KLINE

Supreme Court of Kansas

March 11, 1893

Error from Edwards District Court.

ACTION by Kline against the Cattle Company to recover damages for property destroyed by a fire started by defendant. Judgment for plaintiff. The defendant comes here. The opinion states the facts.

Judgment reversed.

Chas W. Clarke, for plaintiff in error:

1. The fire set out by the cattle company to burn trash, weeds and grass was in its inclosed field, and was for a lawful purpose. The prairie was set on fire by a violent and unanticipated gale and whirlwind, which carried burning trash and cattle chips across the fire guards. There was no negligence in setting the fire or in attempting its control and there can be no recovery against it for property destroyed by such a prairie fire. The provisions of § 2 ch. 118, of the Compiled Laws, do not apply to a fire originating in this manner. Sweeney v. Merrill, 38 Kan. 216; A. T. & S. F. Rld. v. Dennis, 38 id. 424; Kahle v. Hobein, 30 Mo.App. 472; Thomp. Neg., p. 149, note 4; Hewey v. Nourse, 54 Me. 326; Emerson v. Gardiner, 8 Kan. 452; M. K. & T. Rly. Co. v. Davidson, 14 id. 349; Marvin v. C. M. & St. P. Rly. Co., 47 N.W. 1123.

2. Plaintiff cannot recover in this action, because he could, by the use of ordinary means, have avoided all damages, and there is nothing in the provisions of § 2, ch. 118, of the Compiled Laws, wiping out contributory negligence. K. C. Ft. S. & G. Rld. Co. v. McHenry, 24 Kan. 501; Patee v. Adams, 37 id. 133; Mo. Pac. Rly. Co. v. Haley, 25 id. 35; Lawson v. Price, 45 Md. 136; Town Co. v. Leonard, 46 Kan. 358; Sedg. Dam., §§ 201, 202, 204; Parson v. Sutton, 66 N.Y. 92; Loker v. Damon, 17 Pick. 284.

3. The court erred in allowing plaintiff to give his opinion as to the damages sustained by him by reason of the fire burning the grass from the leased section, and stating that his damages were "about $ 400, $ 450, or $ 500, or something like that." Belch v. Railroad Co., 18 Mo.App. 80; Kennedy v. Holliday, 25 id. 514; Railroad Co. v. Calkins, 90 Mo. 543; Thomp. Trials, § 377; City of Parsons v. Lindsay, 26 Kan. 426; Thomp. Neg. 799; Ryerson v. Abbington, 102 Mass. 536; City of Chicago v. McGiven, 78 Ill. 347; Barnes v. Town of Newton, 46 Iowa 567; W. & W. Rld. Co. v. Kuhn, 38 Kan. 675; Town Co. v. Morris, 39 id. 377; Town Co. v. Leonard, 46 id. 354.

4. The court should have sustained the motion for a new trial for the want of of evidence to sustain the verdict, as there was an utter want of competent evidence showing any substantial damages sustained by the plaintiff, by the fire burning the old grass from the leased land, and no facts were testified to on which to base an opinion or to measure the alleged damages. Newby v. Myers, 44 Kan. 477; Railroad Co. v. Calkins, 90 Mo. 543; Awan v. Middlesex, 101 Mass. 173; Railroad Co. v. McKinley, 64 Ill. 338; Shattuck v. Railroad Co., 6 Allen, 115; Simmons v. Railroad Co., 18 Minn. 193; Railroad Co. v. McLaren, 47 Ga. 549.

The court should not have given the instruction which authorized the jury to include in their verdict the value of all property of plaintiff destroyed at the time and place where destroyed, and did not limit it to the articles or amount described in the petition.

ALLEN, J. All the Justices concurring.

OPINION

ALLEN, J.:

This action was brought by Joseph Kline, plaintiff below, to recover of the cattle company damages which he sustained by reason of a fire which he alleges the defendant, through its employes, willfully and intentionally set to prairie grass on the lands of the defendant near the premises on which plaintiff's property was situated. The petition alleges negligence on the part of the defendant in permitting the fire to escape from its lands. The case was tried with a jury, and a verdict rendered in favor of the plaintiff for $ 437.77. Motion was made for a new trial, and overruled by the court, and judgment rendered on the verdict. The cattle company brings the case here for review, and alleges numerous errors.

The rulings of the court on the admissions of testimony are assigned as errors. While some of the rulings of the court with reference to the admission of testimony to prove the plaintiff's damages appear to be erroneous, inasmuch as the defendant, on cross-examination, called out all the facts, and all of the preliminary facts which the plaintiff should properly have shown before having the witness state with reference to the amount of his damages, we think the errors were not such as would warrant a reversal of the judgment, and we do not deem the questions presented with reference to these matters of sufficient importance to be discussed at length. The principal question arises on the instructions given by the court, and as they are brief we give them in full, as follows;

"In this case, the defendant alleges that the defendant corporation, by its agents and employes, set out a fire on the 12th day of March, 1887, on their premises in Edwards county, Kansas, and in the neighborhood of the premises of plaintiff, to burn off the grass from their land; that sad fire escaped from the premises of defendant, spread to and run over the plaintiff's premises, and thereon burned up and destroyed the property of plaintiff described in his petition in this case, including grass growing upon said premises. The defendant corporation, answering, admits that on the 12th day of March, 1887, in the neighborhood of plaintiff's premises, it put out a fire on its own land to burn off the grass, but denies that said fire escaped from the land of the defendant, and spread to and run over upon the plaintiff's premises, and thereby destroyed plaintiff's property. The questions for you to decide are: (1) Did the fire defendant admits it set out on its premises escape from the premises of the defendant, spread and run upon the premises of plaintiff, and there destroy the property described in plaintiff's petition, or any part of it? If, from all the evidence in the case, you find that the fire set out by the defendant did not escape from its premises and run to and upon the premises of the plaintiff, and there destroy his property, then this case is at an end, and your verdict should be for the defendant.

"(2) If you find from a preponderance of all the evidence in the case that the fire set out by the defendant did escape from its premises and spread to and run upon the premises of the plaintiff, and there destroy the property of the plaintiff, you will ascertain what was the nature of the property of plaintiff so destroyed at the time, and at the time and place where it was destroyed, and give the plaintiff a verdict for the value of the property of the plaintiff so destroyed, with 7 per cent. interest on such value from date of said fire until now. In considering the value of grass destroyed on the premises of plaintiff, you will not consider any damages done to the land thereby--to the fee simple. You will confine your inquiry to the injury to the use of the property by the plaintiff, and thus estimate your damages. You will also take into consideration, in connection with claim for damages, the lease of plaintiff from Mr. Geise for premises occupied by plaintiff, to ascertain the interest plaintiff had in the grass growing upon the premises, and give him, if any damage to the grass, what the evidence shows him to have been damaged in his own right, as distinguished from the interest Mr. Geise had in it. He who affirms a proposition, to support it must furnish a preponderance of evidence upon the proposition; that is, a preponderance in weight of evidence. You are exclusive judges of the weight to be given to the evidence in the case."

It is apparent that these instructions were given under the view that the act of the defendant in setting fire to the prairie came within the provisions of P 7277 of the General Statutes, which reads:

"If any person shall set on fire any woods, marshes, or prairies, so as thereby to occasion damage to any other person, he shall be liable to the party injured for the full amount of such damage, to be recovered by a civil action."

It appears that the defendant company was the owner...