Louisville & N.R. Co. v. Brewer

• Decision Date: 01 June 1916
• Citation: 186 S.W. 166,170 Ky. 505
• Parties: LOUISVILLE & N. R. CO. v. BREWER.
• Court: Kentucky Court of Appeals

186 S.W. 166

170 Ky. 505

LOUISVILLE & N. R. CO. v. BREWER.

Court of Appeals of Kentucky.

June 1, 1916

Appeal from Circuit Court, Henry County.

Action by Lon Brewer against the Louisville & Nashville Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Benjamin D. Warfield, of Louisville, and Moody & Barbour, of New Castle, for appellant.

Edwards Ogden & Peak, of Louisville, Turner & Turner, of New Castle and R. F. Peak, of Louisville, for appellee.

CLARKE J.

Lon Brewer owns a farm at Hill Springs in Henry county through which the tracks of the Louisville & Nashville Railroad Company run between his residence and barn. His residence is located on the north side, and about 75 feet from the railroad tracks, while his barn and crib are on the south side, and 400 and 361 feet, respectively, from the tracks. On the 24th of July, 1914, between 7 and 8 o'clock in the evening, one of the railroad company's freight trains going east passed appellee's place, at which time he was milking a cow at a point about halfway between the railroad track and his barn, and his daughter was standing near by. Both appellee and his daughter testified, as the train passed, a wind, that was not a high wind, was blowing from the direction of the railroad toward the barn, and that the engine was emitting large quantities of cinders that fell upon and about them, and that some of these cinders were hot or "alive." One of appellee's witnesses testified that just a short distance from appellee's place when this same train passed him, he was about 25 feet south of the track, and the engine was then emitting quantities of cinders, some of which fell upon and about him and that some of the cinders were as large as the end of his little finger, and alive. Appellee testified that after he had finished milking, he went to his residence without having been near the barn or crib, and that about 9 o'clock, directly after he had retired, he discovered that both his barn and crib were on fire, and that the fires were confined to the roofs of both buildings; that upon that evening and for a long time prior thereto there had been no fire about either his barn or crib, nor near thereto, from which the fire could have originated. He testified that he had known of live sparks being carried from an engine a distance of 400 or 500 feet, and one of his witnesses testified that he had seen sparks from an engine upon the canvas of a tobacco bed 150 yards from the railroad track, and these sparks had scorched the canvas. Appellant's evidence was to the effect that the engine upon this occasion and at this place was not emitting sparks; that it was properly equipped with the latest and most approved spark arrester, which, upon inspection three days before, and again three days after, the fire, had been found in perfect order; that live sparks from an engine could not be carried anything like 400 feet. In appellee's petition to recover from appellant his loss from the destruction of the barn, crib, and their contents, he asserted a damage of $1,620. Appellant's defense was a denial of every material allegation of appellee's petition, and upon trial the jury found a verdict for appellee in the sum of $900. To reverse the judgment entered upon this verdict, appellant is urging numerous errors below, all of which are included in the following: (1) That its motion for a directed verdict should have been sustained; (2) that the court admitted incompetent evidence for the plaintiff and rejected competent evidence for the defendant; (3) that the court erred in its instructions to the jury.

Appellant urges that it was entitled to the peremptory instruction because there was no evidence tending to show that the fire was caused by its negligence, and upon the ground that the court will take judicial notice that a live spark from the smokestack of a locomotive will not carry for the distance between its track and appellee's barn and crib. While it is true that there is no positive evidence that a spark from appellant's locomotive set fire to either of appellee's destroyed buildings, it has been uniformly held by this court that, in an action of this kind, circumstantial evidence that tends to show the fire resulted from a negligent act of the defendant is sufficient to carry the case to and uphold the verdict of the jury. I. C. R. R. Co. v. Scheible, 162 Ky. 470, 172 S.W. 910; L. & N. R. R. Co. v. Guttman, 148 Ky. 235, 146 S.W. 731; L. & N. R. R. Co. v. McArthur, 163 Ky. 296, 173 S.W. 770; C. & O. R. Co. v. Snyder, 164 Ky. 433, 175 S.W. 640; Southern Ry. Co. v. Hanna, 53 S.W. 1, 21 Ky. Law Rep. 850; L. & N. R. R. Co. v. Feeney, 166 Ky. 702, 179 S.W. 826; L. & N. R. R. Co. v. Home Ins. Co., 146 Ky. 282, 142 S.W. 398; K. C. R. Co. v. Barrow, 89 Ky. 643, 20 S.W. 165, 6 Ky. Law Rep. 240.

Appellant insists that its proof of the use and inspection of the spark arrester is conclusive upon the question of the negligent operation of the train. This, however, is not correct, because the evidence of appellee shows that, in spite of this engine's equipment, it was actually emitting live sparks, some of which were the size of the end of the little finger. Such evidence has frequently been held by this court to present an issue of fact for the jury upon the question of negligence in the operation of a train. L. & N. R. R. Co. v. Roemmele, 157 Ky. 84, 162 S.W. 547; L. & N. R. R. Co. v. Samuels, 57 S.W. 235, 22 Ky. Law Rep. 303; L. & N. R. R. Co. v. Taylor, 92 Ky. 55, 17 S.W. 198, 13 Ky. Law Rep. 373; Mills v. L. & N. R. R. Co., 116 Ky. 309, 76 S.W. 29, 25 Ky. Law Rep. 488.

Nor is appellant's contention that the court will take judicial notice that live sparks from an engine may not be carried a distance of 361 feet, the distance involved here, because, so far as we know, it is not a matter of common knowledge that such sparks may not be carried that distance, and we see no relation to the question involved in any of the three cases cited by appellant in support of its contention upon this question, viz., L. & N. R. Co. v. Mitchell, 29 S.W. 860, 17 Ky. Law Rep. 977, L. & N. R. Co. v. Daniel, 122 Ky. 256, 91 S.W. 691, 28 Ky. Law Rep. 1146, 3 L.R.A. (N. S.) 1190, and Muller v. Oregon, 208 U.S. 412, 28 S.Ct. 324, 52 L.Ed. 551, 13 Ann.Cas. 957.

Neither will the court take judicial notice that sparks may be carried that distance, and it was incumbent upon the plaintiff to prove it. This he sought to do by introducing evidence that upon other occasions live sparks from a locomotive had been carried a greater distance than that involved here. Appellant strenuously objected to the introduction of this evidence, and its admission is one of the assigned errors which it urges now as prejudicial. This objection is upon the ground that the other occurrences were too remote in time, and that conditions were not shown to have been the same then as existed when this fire occurred. To support its contention that the other occurrences were too remote, appellant cites Stowe v. L. & N. R. Co., 140 Ky. 291, 131 S.W. 4, and C., N. O. & T. P. Ry. Co. v Sadieville Milling Co., 137 Ky. 568, 126 S.W. 118, in the...