Louisville & N.R. Co. v. Beeler

• Decision Date: 26 June 1907
• Citation: 103 S.W. 300,126 Ky. 328
• Parties: LOUISVILLE & N. R. CO. v. BEELER.
• Court: Kentucky Court of Appeals

103 S.W. 300

126 Ky. 328

LOUISVILLE & N. R. CO. v. BEELER.

Court of Appeals of Kentucky.

June 26, 1907

Appeal from Circuit Court, Bullitt County.

"To be officially reported."

Action by Margaret M. Beeler against the Louisville & Nashville Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Benjamin D. Warfield and Fairleigh, Straus & Fairleigh, for appellant.

Bennett H. Young, Chapeze & Halstead, and E. C. Waide, for appellee.

HOBSON J.

Margaret M. Beeler owns a tract of land adjoining the right of way of the Louisville & Nashville Railroad Company in Bullitt county. She had on her tract an orchard of apple and other fruit trees. In the fall of the year 1904 her orchard was burned over, and a number of the trees were killed or seriously injured. She brought this suit against the railroad company, charging that the fire was caused by its negligence. The defendant filed an answer, in which it denied the allegations of the petition and charged in the second paragraph that the fire was due to the plaintiff's negligence, in that she had suffered her orchard to grow up in weeds, grass, and brush, and but for this it would not have been injured. In the third paragraph it pleaded that its engines were provided with spark arresters, as provided in section 782, Ky. St. 1903. The court struck out the second paragraph and part of the third paragraph of the answer.

The owner of land adjoining a railroad violates no duty to the railroad when he allows his land to grow up in grass, weeds or brush. There is no negligence without the violation of some duty, and there can be no contributory negligence when no duty is placed on the plaintiff to exercise care. Unless the plaintiff has been guilty of a breach of duty, the question of contributory negligence cannot arise. Jaggard on Torts, 960. The rule as to contributory negligence in cases of this character is thus stated in 2 Shearman & Redfield on Negligence,§ 690: "The occupant of land near to, or even next to, the track of a railroad, is not chargeable with contributory negligence merely by reason of leaving his land in its natural state or making any legitimate use of his property. It makes no difference if by so doing his property may be extremely liable to take fire, in the event of the railroad trains being negligently managed. He is not required to anticipate such negligence, nor to give up the lawful use of his property, in such manner as would be deemed prudent under ordinary circumstances, simply because a railroad has been constructed beside his land." See, also, 2 Thompson on Negligence, § 2315; 3 Elliott on Railroads, § 1228. This rule was recognized by us in Louisville & Nashville Railroad Company v. Samuels, 57 S.W. 235. 22 Ky. Law Rep. 303, although that case was distinguished, because there Samuels had built the house in controversy on the right of way of the railroad company.

The court seems to have intended to strike out the matter pleaded in the third paragraph as a defense. At any rate he treated it throughout the trial as matter of evidence, and this view seems to have been concurred in by counsel on both sides. The plaintiff charged that the defendant negligently burned her property. When the defendant traversed the allegations of the petition, the issue was made up. That the engines were screened as provided by the statute was matter of evidence on the question of negligence; but it is unnecessary for the defendant to plead his evidence, and, if he does plead it, it is unnecessary that the plaintiff should take issue upon it. Sections 782 and 790, Ky. St. 1903, are as follows:

"Sec 782. All companies shall place in, on or around the tops of the chimneys of engines, a screen, fender, damper or other appliance, that will prevent, as far as possible, sparks of fire from escaping from such chimneys."

"Sec. 790. Every company shall keep its right of way clear and free from weeds, high grass, and decayed timber, which, from their nature and condition, are combustible material, liable to take and communicate fire from passing trains to abutting or adjacent property."

The proof for the plaintiff showed that the fire originated on the railroad's right of way, and spread from it to the plaintiff's land. The proof also showed that the defendant had mowed the grass and weeds upon its right of way some time before the fire, but had left them lying upon the ground. This dry material lying upon the ground was more dangerous than if it had not been cut. There was also proof that a train passed along about 10 minutes before the fire occurred, which did the damage sued for. The court, therefore, properly refused to instruct the jury peremptorily to find for the defendant. Cincinnati, etc., R. R. Co. v. Falconer, 97 S.W. 727, 30 Ky. Law Rep. 152; Southern Railway in Kentucky v. McGeoughy (Ky.) 102 S.W. 270. There was no evidence tending to show that the fire could have originated from anything except the trains, and the circumstances leave no doubt that it did originate from the passing trains.

The proof for the plaintiff was to the effect that 800 or 900 apple trees were destroyed or greatly injured. There was no controversy in the evidence as to the number of trees burned or as to the amount of injury done to the trees. The only conflict in the evidence was as to the value of the trees or the value in money of the injury done to them. The proof for the plaintiff put the damages much higher than that for the defendant. One witness for the defendant, who testified very clearly and seemed to understand the subject, put the damages at $2.50 a tree. Not long after the burning the railroad company had two neighbors who handled fruit and fruit trees to go upon the land...