Kansas City Southern Railway Co. v. Harris

• Decision Date: 18 November 1912
• Parties: KANSAS CITY SOUTHERN RAILWAY COMPANY v. HARRIS
• Court: Arkansas Supreme Court

151 S.W. 992

105 Ark. 374

KANSAS CITY SOUTHERN RAILWAY COMPANY v. HARRIS

Supreme Court of Arkansas

November 18, 1912

Appeal from Polk Circuit Court; Daniel Hon, Judge on exchange affirmed.

Judgment affirmed.

Read & McDonough, for appellant.

1. There is no evidence in the cause that warrants the submission of the case to the jury. Before appellee can recover under the act of 1907, it must appear that the fire originated from the operation of defendant's trains. 97 Ark. 287. The evidence is not sufficient to show any connection between the fire which sprung up between 6 o'clock and 7 o'clock (which was completely extinguished by the witness Williams) and the fire which destroyed plaintiff's property at 2 o'clock the next morning. 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; 29 P. 664; 32 P. 345; 101 S.W. 636; 149 Mich. 400; 89 Ark. 274; 110 N.W. 561.

2. The court was requested to charge the jury, in substance, that if plaintiff was negligent in not putting out the fire after discovering it, he could not recover, and erred in refusing such charge. This court's holding in the Evins case, 147 S.W. 452, to the effect that contributory negligence was not a defense in cases brought to recover damages resulting from fires set out by the operation of railroad locomotives, is not supported by the weight of authority. 3 Elliott on Railroads, § 1238; Thompson on Negligence, § 751; 55 So. 871; 38 Ark. 357; 49 Ark. 535.

In the Evins case, supra, the court held that "any fraud, any intentional exposure of property, any act of the owner which would have the effect to avoid a fire policy, should have the same effect in cases of this description." Under this holding the above requested charge should have been given. 19 Cyc., § 831, and cases cited; 95 Wis. 265; 57 Mass. 321; 29 Fed. Cases, 1384.

W. M. Pipkin, and Hill, Brizzolara & Fitzhugh, for appellee.

1. A mere statement of the evidence is sufficient reply to appellant's contention that there is not sufficient testimony to sustain the verdict. The fire was first seen in the old tramway a few minutes after the train had passed, emitting sparks which, the testimony shows, were falling at the identical point where the fire was discovered. Any other conclusion than that the fire originally started in the old tram, and had been fanned into fresh life, after the attempts to extinguish it, by the strong wind of the night and carried into the lumber piles, could hardly be reached by reasonable men.

The testimony was largely circumstantial; but, if the circumstances were such as a jury might reasonably infer that the fire came from the old tramway, appellee's case is made out. 58 Cal. 434; 2 Am. Dec. 91; 77 Ark. 434, 436; 59 Ark. 317; 76 Ark. 132; 101 S.W. 636; 13 Am. & Eng. Enc. of L. 510, 512; 62 Ia. 593; 3 Elliott on Railroads, § 1243; 126 Ind. 229; 131 Ind. 30; 19 L. R. A. (N. S.) 742; 12 Id. 526; 5 Id. 99; 2 Thompson's Com. on Negligence, 2291, and authorities cited; Id. § 2295.

2. There was no testimony whatever that appellee or his servants were guilty of contributory negligence. Moreover, contributory negligence is an affirmative defense which must be pleaded to be available, and appellant failed to plead it. 72 Ark. 23; 90 Ark. 64.

The Evins case, 147 S.W. 452, is conclusive against appellant's contention, and is in harmony with the construction placed on similar statutes. 3 Elliott on Railroads, § 1238; 2 Thompson's Com. on Negligence, §§ 2337 to 2350.

Read & McDonough, for appellant in reply.

Regardless of allegations of the answer, the record is clear that contributory negligence was made an issue in the lower court. Both parties so regarded it, introduced testimony directed to that issue, and requested instructions upon the same issue. 64 Ark. 305; 71 Ark. 242; 74 Ark. 615; 72 Ark. 47; 75 Ark. 571; Id. 312; 76 Ark. 391; 35 Ark. 109.

OPINION

WOOD, J.

This suit was brought by appellee against appellant to recover damages for the alleged destruction of certain lumber and other property which appellee alleged in his complaint was destroyed by fire from one of appellant's engines while the same was being operated on appellant's railroad in Polk County, Arkansas, on April 19, 1910.

The answer denied all the material allegations of the complaint. There was no specific plea of contributory negligence. Verdict and judgment were in favor of the appellee in the sum of $ 1,102.80, from which this appeal has been duly prosecuted.

The testimony stated most strongly in favor of the appellee is substantially as follows:

Appellant's freight train passed Eagleton going north about 6 o'clock in the afternoon. At that point there was an up-grade to the track, and it was a heavy train. Sparks and fire were emitted from the smoke stack and were falling in an old tramway between fifty and one hundred feet from the railroad track. A short time after the train passed fire was discovered in the tramway. There had been no other fire anywhere in the vicinity for several days. The planing mill had not been running. A witness attempted to extinguish the fire in the old tramway but was unsuccessful. The fire was burning in trash and old rotten wood, and other debris. About a half hour after the first attempt to put out the fire the witness returned to the spot and found fire at the identical place where he first attempted to extinguish it, and by that time it had covered an area of ten or twelve feet. In his second attempt to extinguish the fire he scattered the same, pouring water on it, and thought that he had put it out.

Witness testified that when fire gets started in trash and rotten wood it is difficult not only to put it out, but almost impossible to tell when it has been extinguished. In such debris as that described fire will smoulder for hours at a time, and then kindle up and spread. At a later hour in the night, left uncertain in the testimony, probably between 12 and 2 o'clock, the alarm of fire was again given, and witnesses who had seen the fire earlier in the evening, and others, went to the scene. The old tramway was burning at this later time, and a large part of the same had been consumed. At that time large coals and sparks were being carried from the old tramway across the road into the lumber piles and a new tramway. The wind was blowing from the direction of the old tramway toward the lumber pile. The piles of lumber and other property that were consumed by these fires constituted the loss for which appellee sued and has obtained judgment.

The appellant contends that the above facts are not sufficient to sustain the verdict, and cites many cases where under the circumstances peculiar to these cases it was held that the evidence was insufficient, but each case must necessarily depend upon its own facts, and we are of the opinion that the above evidence makes it a question for the jury as to whether the fire originated from appellant's engine or from some other cause. In St. Louis, I. M. & S. Ry. Co. v. Dawson, 77 Ark. 434, 92 S.W. 27, we said: "It is not required that the evidence should exclude all possibility of another origin or that it be undisputed. It is sufficient if all the facts and circumstances in evidence fairly warrant the conclusion that the fire did not originate from some other cause."

Applying this doctrine, we are of the opinion that the facts disclosed by the testimony in the record, giving it the strongest probative effect in favor of the appellee, would warrant the jury in finding that the fire could not have originated from any other cause than that alleged in the complaint.

The testimony makes it reasonably certain that the fires discovered at about 6:30...