Railway Co. v. Jones

• Decision Date: 05 May 1894
• Citation: 26 S.W. 595,59 Ark. 105
• Parties: RAILWAY COMPANY v. JONES
• Court: Arkansas Supreme Court

26 S.W. 595

59 Ark. 105

RAILWAY COMPANY v. JONES

Supreme Court of Arkansas

May 5, 1894

Appeal from Washington Circuit Court, EDWARD S. MCDANIEL, Judge.

Action by Jones against the St. Louis & San Francisco Railway Company to recover damages for burning a meadow. The facts are stated by the court as follows:

The complaint alleges, first, that about the 18th of October 1891, within a short distance from plaintiff's farm, the grass became ignited from sparks and cinders from defendant's engine, and burned five acres of plaintiff's meadow, to his damage in the sum of $ 65 second, that, on the 22d day of October, 1891, a passing train, by sparks and cinders from the engine, set fire and burned thirty panels of fence and twenty acres of meadow, and damaged plaintiff in the sum of $ 275.

The answer denies specifically each allegation in both counts of the complaint.

The evidence in this case tends to show that, on the 22d of October, 1891, the south-bound passenger train of the appellant passed the appellee's place, and by some means set fire to dry grass and combustible materials that had accumulated on the right of way of appellant's road, and that the fire was communicated to, and burned over, about twenty acres of the appellee's timothy meadow, and destroyed the same; that the section hands had mowed down the grass sometime in the summer preceding the fire, and left it spread out over the right of way, and that it was very dry at the time the fire occurred; that the right of way was covered with the grass up to near the ends of the ties on the track that it was worth three dollars per acre to reseed the meadow.

On the trial the appellee, testifying, was permitted to state, over the objection of the appellant: "I estimate my loss at ten dollars per acre on account of the loss of a crop of hay and three dollars per acre for breaking, seeding and harrowing the land"--to which appellant excepted.

Testimony was allowed to go to the jury, over the objection of the appellant, that there were, on the 22d of October, 1891, the day appellee's meadow was burned, fires on two farms on the railroad south of McCollum's farm, which adjoins the appellee's; that there was a fire on the 16th of the same month, and one on the 20th of May in the same year, on farms on the line of the railway, but it was not shown by the evidence how these fires occurred, or that they were set by fire escaping from the railroad's engines. To the admission of all this testimony the appellant excepted.

The testimony for the appellant tended to show that the locomotive, which it was claimed caused the fire on the 22d of October, 1891, when appellee's meadow was burned, was comparatively new; was one of the best made, with the best spark arrester known; that its fire-pan, box and spark-arrester were in perfect order, and properly handled on that day; that no fire was set on that day, by that engine so far as the engineer and fireman on that engine knew; that the engine had been inspected by the company's inspector on the 10th of October, 1891; and that its appliances for holding fire and arresting sparks were of the most approved kind, of the best quality, and then in perfect order and condition.

The court instructed the jury as follows: "1. I charge you that it is the duty of all railroad companies in this State to use all reasonable care and diligence to avoid the burning of property by its trains, and they are liable for all damages caused by fire set to property by their trains if the same could have been avoided by the exercise of reasonable diligence and care on their part.

"2. I charge you that if you believe from the evidence that the railroad company negligently permitted dead grass and other combustible material to remain upon its right of way after it had knowledge of the same, or from reasonable diligence should have known the same, and that the same increased the danger from fire that might escape from its engines or trains, and that afterwards fire caught to the same from said company's trains upon their right of way, and spread over, burned and damaged plaintiff's meadow and fence, then you should find the issues for the plaintiff.

"3. In order to determine the damages sustained by the plaintiff, if you find he was damaged, you should take into consideration the condition of the meadow, as it was before the fire, and also its condition after the fire, as shown by the evidence, and then determine from all the evidence what damage has been sustained by the plaintiff."

And the court refused the following instruction asked by defendant, to which exception was duly taken:

"14. The fact that the fire originated on the right of way would not authorize a recovery unless it is shown that the fire was set by the railway company or its employees."

The defendant moved the court to require the jury to make the following special findings:

"If the jury find the issue for the plaintiff, they will then answer the following questions: (1) What do you find as damages, if any, by the fire west of the track? (2) What act of negligence caused the fire west of the track? (3) How was the fire west of the track set? (4) What act of negligence caused the fire on the east side of the track? (5) What was the damage to the tract east of the track? (6) How was the fire set on the east side of track?" But the court refused to request or require the jury to make answer to any of said questions, to which defendant excepted.

The jury returned the following verdict: "We, the jury, find the issues for the plaintiff, and assess his damages at one hundred and forty-four and 75-100 dollars. D. E. Jackson, Foreman."

The defendant then filed a motion for a new trial for the following reasons: "(1) The court erred in admitting testimony over objection. (2) The court erred in refusing to require special findings. (3) The court erred in giving instructions and in refusing instructions. (4) The verdict was contrary to, and not supported by, the evidence, and was contrary to the law." This motion was overruled, to which the defendant excepted, filed his bill of exceptions, and appealed.

Judgment reversed and cause remanded.

E. D. Kenna and B. R. Davidson for appellant.

1. There was no proof to sustain the first count in the complaint. It was not shown how the fire originated, nor that a train passed on that day or night. Denver & R. G. Ry. v. Morton, Col. App. (February 13, 1893), 32, p. 345.

2. It was error to admit testimony of other fires, without showing that the fires were set out by this particular engine. 13 A. & E. R. Cas. 469; 1 Redf. Railways, 476 (5th ed.); 4 Md. 242; 60 Mo. 227, 233; ib. 265; 78 Pa.St. 293-5; 42 N.H. 97-99.

3. Plaintiff's opinion that he was damaged $ 10 per acre was not admissible in evidence. 79 Ind. 111, 116. The measure of damages for destroying a meadow is the cost of seeding, and the rental value while being restored. 23 A. & E. R. Cases, 108-115; 66 Ia. 606-616; 110 Ind. 225.

4. The statutory presumption of negligence does not attach until it is shown that the fire originated from the engine. 49 Ark. 535; 42 id. 122; 56 id. 549; 29 Barb. 226; Whart. Neg. sec. 870.

5. There is no legal obligation on a railroad to keep its right of way so clean that a fire could not be started on it.

Thos. M. Gunter for appellee.

1. The railroad allowed combustible matter to accumulate on the right of way, and the fire originated from its train. This made the company liable. 38 N.J. 5; 26 Wis. 223; 58 Ind. 476; 4 Neb. 268; 51 Ind. 150; 2 W.Va. 14; 18 Am. Ry. Rep. 154.

2. Evidence of other fires along the line of the railroad, about the time the meadow was destroyed, was admissible. 50 Cal 186; 2 Hun, 182; 25 N.Y. 544; ...