Louisville & N.R. Co. v. Dalton

• Decision Date: 24 November 1897
• Citation: 102 Ky. 290,43 S.W. 431
• Parties: LOUISVILLE & N. R. CO. v. DALTON.
• Court: Kentucky Court of Appeals

43 S.W. 431

102 Ky. 290

LOUISVILLE & N. R. CO. v. DALTON.

Court of Appeals of Kentucky.

November 24, 1897

Appeal from circuit court, Christian county.

"To be officially reported."

Action by H. M. Dalton against the Louisville & Nashville Railroad Company. Judgment was rendered for plaintiff, and defendant appeals. Reversed.

Joe. McCarroll, for appellant.

Petree & Downer, for appellee.

HAZELRIGG J.

The chief instruction to the jury presents the nature of the case before us on this appeal. It, in substance, told them that if the plaintiff's building and its contents were set on fire by sparks from the company's engine, and that the engine at the time was not provided with the best and most approved screen or spark arrester known to science and in practical use, the same being in good order and properly adjusted, they were to find for the plaintiff; and they were to so find, even if such screen and spark arrester were attached to the engine and in proper condition, if they further believed that the engine and train were handled and managed by defendant's employés in such a negligent manner as that sparks escaped therefrom and ignited the building. From the proof it is clearly inferable that the building was fired by sparks from the company's engine but it is also clear, from the uncontradicted proof, that the engine, in conformity with the requirements of our statute (section 782, Ky. St.), was furnished at the time with the best and most approved screen and spark arrester in practical use, and that these appliances were in perfect order notwithstanding which sparks escaped, as it is shown they will sometimes do in spite of all effort to prevent it. Under these circumstances, this court has held, and likewise the courts of every state where the liability of the company is not made absolute by statute, that railroad companies are not required to provide appliances that will effectually and certainly, under every condition, prevent the escape of sparks of fire from the chimneys of their locomotives, but only to provide and use the best and most effectual preventive known to science, so as to prevent, as far as possible, injury being done. Railroad Co. v. Barrow, 89 Ky. 638, 20 S.W. 165; Railroad Co. v. Taylor, 92 Ky. 55, 17 S.W. 198; Railroad Co. v. Mitchell, 29 S.W. 860. Before liability can be fastened on the company for want of proper screens on its engines, or because of their defective condition, there must be some evidence to show such want or defective condition, such as that an unusual quantity of live sparks were being emitted while the train was going at an ordinary rate of speed, or that the same engine started several successive fires on the same trip, or the like. In the case before us there is no evidence or circumstance of this character to rebut the testimony of a number of witnesses for the company, who testify as to the perfect condition of the appliances after a thorough examination immediately after the fire. In the absence of evidence to the contrary, the jury was not at liberty to reject the evidence of these witnesses, and this branch of the case may therefore be regarded as having been concluded by the proof.

However whether there was negligent management of the engine and train at the time of the fire is a disputed question. There was a big grade in front of the building consumed, and the proof of the plaintiff was directed towards showing that the sparks escaped because, in switching, a heavy train was being kicked up grade at the rate of some 25 miles per hour within the city limits, instead of which the cars should have been pushed up more slowly; that the engine "labored hard," and increased its speed rapidly, to give a momentum to the cars kicked in on the switch and up the grade, so they would roll on over, etc. The company's witnesses testified that there was nothing unusual in this and the operator of the engine was entirely prudent, under the...