Louisville & N. R. Co. v. Howe

• Decision Date: 21 November 1951
• Citation: 243 S.W.2d 905
• Court: United States State Supreme Court — District of Kentucky
• Parties: LOUISVILLE & NASHVILLE R. CO. v. HOWE et al.

Page 905

243 S.W.2d 905

LOUISVILLE & NASHVILLE R. CO. v. HOWE et al.

Court of Appeals of Kentucky.

Nov. 21, 1951.

C. S. Landrum, C. E. Rice, Jr., Lexington, Fennell & Tucker, Cynthiana, for appellant.

Sawyer A. Smith, Covington, for appellee.

STEWART, Justice.

Nancy Howe, Mary Lowe, Martha Arnold and E. C. Arnold recovered judgment from the Louisville & Nashville Railroad Company in the Pendleton Circuit Court in the sum of $5208.20 for the alleged destruction by the Railroad Company of a barn, a brooder house, a chicken house, three other small buildings and certain personal property and for damage to a garage and fences, which property they claimed they owned.

The Railroad Company seeks to reverse the judgment because the lower court erred (a) in not directing a verdict for it; (b) in giving improper instructions to the jury; (c) in admitting incompetent evidence as to the value of the property damaged or destroyed; (d) in admitting and in not excluding certain evidence of a prejudicial nature; (e) in allowing counsel for appellees to make prejudicial comments before the jury concerning incompetent evidence; and (f) in refusing to set aside the verdict as excessive.

Appellees' testimony disclosed that the fire upon which their suit is based occurred on February 18, 1948, at approximately 3:00 p. m., when five employees of appellant were burning off its railroad right-of-way. Weeds grass and bushes had been previously cut and stacked in piles to dry by the section men on the right-of-way and they had come back several months later to burn the piles. In the cleanup job, the right-of-way for about 500 feet in length was burned off and the fire spread to, but not across, a black-topped road that ran parallel to the railroad. Just beyond the road is the land of appellees on which the barn and other property were located. There is a steep slope between the highway and the railroad track. The barn was situated on a knoll some distance above the railroad right-of-way, approximately 315 feet from the center of the track and something like 210 feet from the center of the public road. It had an old wooden shingle roof which was in an inflammable condition.

Witnesses for appellees testified that on the day of the fire it was clear; that a 'tolerably strong wind was blowing' from the direction of the railroad up the hill toward the barn and other buildings that caught fire; and that the area between the right-of-way and the land occupied by appellees was filled with much smoke. Several persons who saw it said the fire burned up the hill toward the barn; the garage, about 30 or 40 feet from the barn and nearer to the railroad, was first filled with smoke from the right-of-way; and then a blaze broke out on the roof of the barn on the 'side next to the railroad'. The conflagration spread from the barn to the other property and all were either destroyed or damaged.

Appellant, in an effort to sustain its contention that it was entitled to a directed verdict, relies mainly upon the fact that no one testified to having seen sparks fly through the air from the fire on its right-of-way and blow toward the barn or other buildings. Its employees, who were burning off its right-of-way at the time, stated that the barn started burning from the inside. To further bolster its claim that the fire was of interior origin, appellant cites the evidence of appellee, Mary Lowe, who said, when she first saw the burning barn 'the blaze was coming out under the eaves of the barn near the roof on the side of the barn; it was all along the side of the barn.' Counsel for appellant argued in their brief that certain persons who smoked incessantly went into the barn something like thirty or forty minutes before it caught on fire, but proof is lacking that these persons were actually smoking at the time they were inside the building. The claim of appellant that the fire could have been caused by a short circuit in the electric wiring in the barn, which wiring at times in the past had gotten out of order, is likewise unsupported by evidence.

Appellant insists strongly that we must indulge in speculation and, in fact, just guess that sparks from the burning right-of-way somehow got to the barn and set it afire. We are unable to go along with this theory, since we have written a number of times in actions similar to the one at bar that evidence circumstantial in nature which tends to show that a fire was caused by the negligent act of another is sufficient to take the case to the jury and to uphold a verdict rendered by it. L. & N. R. Co. v. Hobbs, 188 Ky. 291, 221 S.W. 539; L. & N. R. Co. v. Brewer, 170 Ky. 505, 186 S.W. 166, and many cases cited therein. When we consider that the wind was blowing toward the barn, that the barn was uphill from the fire on the railroad property, that the roof of the barn was in a highly inflammable condition, that the fire, which was spread along 500 feet on the right-of-way, traveled to within 210 feet of the barn, that the barn caught on fire while the fire on the right-of-way was burning fiercely, and that there is no direct evidence as to other probable causes of the fire, we think the court properly refused to instruct the jury peremptorily for appellant.

It is insisted that Instruction No. 1, which only placed upon appellant the requirement to use ordinary care in cleaning off its right-of-way, did not set forth the proper standard for measuring the duty of appellant, since it did not submit to the jury that it was under compulsion to keep its right-of-way clear of weeds, high grass and decayed timber, as required by KRS 277.220(2). We are of the view that even though a statutory obligation is imposed upon a railroad to keep its right-of-way cleaned off, it is nevertheless responsible for its negligent acts that injure another growing out of a fire started by it on its property, especially if it negligently fails to confine the fire to its property. Under the proof Instruction No. 1 was proper. See Stanley's Instructions to...