Louisville & N.R. Co. v. Samuels' Ex'rs

• Decision Date: 01 June 1900
• Citation: 57 S.W. 235
• Parties: LOUISVILLE & N. R. CO. v. SAMUELS' EX'RS. [1]
• Court: Kentucky Court of Appeals

57 S.W. 235

LOUISVILLE & N. R. CO. v. SAMUELS' EX'RS. ^[1]

Court of Appeals of Kentucky.

June 1, 1900

Appeal from circuit court, Nelson county.

"Not to be officially reported."

Action by Taylor W. Samuels' executors against the Louisville &amp Nashville Railroad Company to recover damages for the destruction of property by fire. Judgment for plaintiffs, and defendant appeals. Reversed.

Jno. S Kelley, for appellant.

Geo. S & John A. Fulton and E. E. McKay, for appellees.

BURNAM J.

This is an action by appellees to recover of appellant damages for the destruction of a warehouse, partially located on appellant's right of way on the line of its Springfield Branch, and of 41 barrels of whisky stored therein, alleged to have been occasioned by burning cinders, sparks, and fire being thrown upon the warehouse from one of appellant's locomotives passing at the time; and it is further alleged that the escape of the sparks was due to the negligent construction, operation, and management by appellant and its operatives of the locomotive. The answer of appellant is a denial of the affirmative allegations of the petition, and a plea of contributory negligence on the part of appellees. The trial resulted in a verdict and judgment in favor of appellees.

The testimony shows that this warehouse was built in 1866; that there was a platform eight feet wide in front of it, which extended nearly to the track of the railroad, and that the roof on the main building projected over the platform; that it was originally built to be used, not only as a warehouse, but also as a depot, by appellant; and that it was so used up to the year 1881, at which time the depot was moved, but the house thereafter continued to be used as a warehouse for storing whisky, salt, lime, cement, and other heavy goods handled by appellee as a merchant; and that these commodities were received and delivered from the building, the cars stopping immediately in front thereof for this purpose. It further appears that the building had become quite dilapidated, and the shingle roof, which was the same one put on the house when originally built, had become, from long exposure to the elements, very frail and combustible; that appellee recognized this fact, and mentioned it to one of appellant's engineers in charge of another train, cautioning him to be careful in passing; and it also appears that he had spoken of having a new roof put on the building. It may be fairly inferred from the proof in the record that the building was ignited by sparks from appellant's engine, but the testimony for appellant conduces very strongly to show that the engine was provided at the time with a spark arrester, in conformity with section 782 of the Kentucky Statutes, and that it was run carefully, by tried and competent men.

The testimony of appellee, relied on to establish the alleged negligence either in the construction or operation of the engine, is confined to statements of witnesses who testify as to the escape of sparks and cinders from passing locomotives in considerable quantities. The witness Anderson says that on the day of the fire he saw a great many cinders near his barn, located about one-quarter or one-half mile from the house which was burned, and about 50 feet from the right of way, which were thrown out by the engine, and that the ground was covered with them. Everett Roberts testifies that he was walking along the road which ran parallel to the railroad track, about 50 or 60 feet therefrom, a few minutes after the engine had passed, and that he observed there were fresh cinders in considerable quantities on the pike, about three-quarters of a mile from where the warehouse was burned. The witness Varnum testifies that he was standing on the platform at the depot, and that when the train started off there were considerably more sparks and cinders emitted from the engine than when it was running; that as he was going to Samuels' Depot, walking, he saw the grass on fire that had caught from the engine, and that he had noticed it throwing out sparks in considerable quantities. And the witness Vittoe says that his residence is only a few feet from the right of way; that there is a heavy grade near the house that was burned, and when engines would start, and the wind was from the south or southwest, sparks and cinders would fall in considerable quantities on the platform, and would...