Kansas City Southern Railway Company v. Wilson

• Decision Date: 09 November 1914
• Docket Number: 230
• Citation: 171 S.W. 484,119 Ark. 143
• Parties: KANSAS CITY SOUTHERN RAILWAY COMPANY v. WILSON
• Court: Arkansas Supreme Court

171 S.W. 484

119 Ark. 143

KANSAS CITY SOUTHERN RAILWAY COMPANY v. WILSON

No. 230

Supreme Court of Arkansas

November 9, 1914

Appeal from Little River Circuit Court; Jefferson T. Cowling, Judge affirmed.

STATEMENT BY THE COURT.

H. B Wilson instituted this action against the Kansas City Southern Railway Company to recover damages for the negligence of the defendant's servants in permitting fire to escape from its right-of-way, whereby his pasture was burned and destroyed. The plaintiff had leased the land on which the pasture was burned; subsequently the owners of the land were also made parties to the action. The facts are as follows:

On the 21st day of October, 1911, H. B. Wilson leased a tract of land in Little River County, Arkansas, for a term of five years. In 1912 about one hundred acres of it was enclosed as a pasture. In the pasture were red top oats, peas, kafir corn, bermuda and other natural grasses. On Saturday evening the 23d day of November, 1912, the pasture was burned over and the grass and other products on it entirely destroyed. A little more than a thousand fence posts and about a half mile of fence around the field were also destroyed by the fire and about a quarter of a mile of plank and board fence around his barn was also burned. A part of the fence destroyed by the fire was adjoining the right-of-way of the Kansas City Southern Railway Company. On Friday before the fire occurred the plaintiff saw H. Hicks, a section foreman and some section men burning off the right-of-way adjoining the farm. It was their custom to burn off the right-of-way every fall.

Two of the tenants on the farm as they went to town on Saturday afternoon saw the section men burning off the grass on the right-of-way of the railway company. The fire had not then got off of the right-of-way. Later in the afternoon the fire escaped from the right-of-way and burned the fence and pasture of the plaintiff as above stated.

Wilson testified that the rental value of the pasture was $ 150 and that a reasonable value of the posts destroyed was twelve to fifteen cents each; that it would cost about $ 35 to replace the fence around the pasture and about $ 26 to replace the plank and board fence around the barn. Another witness testified that he had bought some posts from the plaintiff Wilson on the farm. that they were good post oak posts and were reasonably worth fifteen cents each. Other facts will be referred to in the opinion. The jury returned a verdict in favor of the plaintiffs in the sum of $ 160, and the defendant has appealed.

Judgment affirmed.

Read & McDonough, for appellant.

1. The court should have directed a verdict for appellant for want of evidence to show that the fire originated upon the right-of-way of appellant, and that the section men were the employees of appellant.

To sustain their complaint, it was necessary that appellees should prove that the railroad belonged to the Kansas City Southern Railway Company and that the section men referred to were its employees. 70 Ia. 185.

The court should have directed a verdict for appellant also because the proof is wholly insufficient to show that the employees set out the fire. No presumption will be indulged where a fact must be established by the burden of proof. There should be positive proof connecting the fires and showing a causal relation between the agency of the employees and the existence of the fire. 42 P. 602; 100 S.W. 504; 71 S.W. 1073; 83 N.W. 137; 79 N.W. 1032; 75 N.W. 1114; 47 N.E 691; 33 S.E. 917; 29 S.E. 213; 121 F. 924; 100 N.W. 207; 79 N.W. 310; 55 S.E. 270; 110 N.W. 561; 86 P. 1010; 89 Ark. 274; 97 Ark. 287.

Evidence that the fire was set out by section men would not be sufficient. The statute of 1907 applies to the setting out of fires through the operation of trains or locomotives. 97 Ark. 287. There must be some proof, in order to show that the fire was set out negligently, that it was done through the operation of a train or locomotive. Id.; 105 Ark. 374.

2. It was clearly error to permit the plaintiff to testify as to the reasonable expense of replacing the fences. The measure of damages where permanent improvements are destroyed, is the difference in value between the farm with the improvements and the farm without the improvements. It is not the cost of reproducing the fences. 73 Ark. 464; 82 Ark. 387; 93 Ark. 46.

3. The measure of damages in case of the destruction of a pasture is the reasonable value of the land with the pasture, and its value without it, or the reasonable rental value of the pasture. 67 Ark. 371; 82 Ark. 387; 95 Ark. 297.

A. D. Dulaney and Steel, Lake & Head, for appellees.

OPINION

HART, J., (after stating the facts).

It is contended by counsel for the defendant that there is not sufficient evidence to support the verdict. The testimony on the part of the plaintiff shows that some section men were engaged in burning off the right-of-way of the railroad on the Friday before the fire occurred. This the railroad company was legally entitled to do. The liability of the defendant to the plaintiff for the destruction by fire of its pasture and fence depends, first, upon the proof whether it resulted from its act, and, second, whether the fire resulted from the negligence of the defendant or its servants in burning off its right-of-way. What would constitute such negligence or want of care and prudence as would render the railroad company liable for the destruction by fire from its act in burning off its right-of-way depends upon the circumstances as they existed at the time. See Bizzell v. Booker, 16 Ark. 308.

The testimony of the plaintiff, as abstracted by the defendant shows that a part of the fence which was burned was on the right-of-way of the Kansas City Southern Railway Company and that some section men were engaged in burning off the right-of-way on Friday before the fire occurred on Saturday afternoon. His testimony also shows that it was a custom of the section foreman and his crew to burn off the right-of-way every fall. It is now contended by counsel for the railway company that the proof does not show that the section men were employees of the defendant company nor that they were engaged in burning off the right-of-way on the Saturday afternoon that the fire occurred. As we have already seen, the testimony shows that a part of the fence burned was next to the right-of-way of the defendant railway company and the plaintiff knew the section foreman who was engaged in burning off the grass on Friday. From these facts the...