Missouri Pac. Ry. Co. v. Merrill

• Decision Date: 08 December 1888
• Citation: 19 P. 793,40 Kan. 404
• Parties: THE MISSOURI PACIFIC RAILWAY COMPANY v. J. C. MERRILL
• Court: Kansas Supreme Court

19 P. 793

40 Kan. 404

THE MISSOURI PACIFIC RAILWAY COMPANY v. J. C. MERRILL

Supreme Court of Kansas

December 8, 1888

Error from Anderson District Court.

THE opinion contains a statement of the facts. Judgment for the plaintiff Merrill, at the September term, 1886. The defendant Railway Company brings the case to this court.

Judgment affirmed.

W. A Johnson, for plaintiff in error.

Kirk Schoonover & Bowman, for defendant in error.

JOHNSTON J. All the Justices concurring.

OPINION

JOHNSTON, J.:

J. C. Merrill brought this action against the Missouri Pacific Railway Company to recover damages alleged to have been sustained through the negligence of the railway company in permitting fire to escape from its locomotive in the operation of its railroad. He alleged --

"That on the 4th day of December, 1885, the said defendant, while running one of its trains on said road in Anderson county, Kansas, managed its said train carelessly and negligently, and failed to employ suitable means to prevent the escape of fire from the engine used in running said train, and also permitted dead and dry grass and other combustible material to remain on the right-of-way of said defendant, and near the track of the road of said defendant; so that by reason of the said carelessness and negligence, fire escaped from the engine of said company, and set fire to the dry grass and other combustible material on the right-of-way of said company, and by means of a continuous body of dry grass and other combustible material it was communicated to the premises of the said plaintiff."

He then set out in detail the property that was injured and destroyed, being a large number of fruit and other trees, and a large quantity of hay, and placed the entire damage suffered at $ 697, for which he asked judgment, and also for an additional sum of $ 50 for an attorney's fee. The railway company denied the charge of negligence, and claimed that Merrill was himself guilty of carelessness which contributed directly to the injury. At the September term, 1886, the cause was tried before a jury, which returned a verdict against the railway company, assessing Merrill's damages at $ 260, and also finding $ 50 to be a reasonable attorney's fee for the plaintiff in the prosecution of the cause. This verdict received the approval of the court, and judgment was entered in accordance therewith.

Several errors are assigned upon the rulings of the court during the trial; the first of which is that the court erred in not sustaining a motion of the company to make the petition of the plaintiff more definite and certain by stating what train running on defendant's road caused the injury complained of, whether it was a freight or a passenger train, and whether it was going east or west on the road. In view of the number of trains which pass back and forth over a railroad, this motion might properly have been allowed. Merrill was doubtless acquainted with the facts, and could have stated explicitly from what train the fire escaped. With this information, the company would have been better informed and better prepared to meet the charge made against it. It could then have investigated what the condition of the locomotive and the conduct of its employes thereon were at that time, and thus have ascertained whether the fire was the result of the company's negligence. The record discloses, however, that no prejudice resulted to the company from the ruling made. Some of the servants of the company were present when the fire escaped, and assisted in putting it out, and one of them reported to the company the cause and the extent of the injury. They had the same information as to which locomotive and train were passing as Merrill had, and therefore the company suffered no inconvenience in this instance from the indefiniteness of the petition. As the court is invested with considerable discretion in passing on motions of this kind, and as no prejudice resulted to the company, the ruling of the court cannot be regarded as reversible error.

It is next contended that the court erred in calling the attention of the jury to chapter 155 of the laws of 1885, and instructing the jury under that statute, that when it is made to appear by the preponderance of the evidence that the fire and resulting damages were caused by the railroad company in operating its road, the negligence of the company may be presumed, unless it further appears from the evidence in the case that the company was not in fact negligent in permitting the fire to escape. This claim is made upon the ground that the plaintiff, by alleging that the company was also...