Sprague v. The Atchison

• Decision Date: 01 December 1904
• Docket Number: 13,843
• Citation: 78 P. 828,70 Kan. 359
• Court: Kansas Supreme Court
• Parties: E. F. SPRAGUE v. THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY et al

78 P. 828

70 Kan. 359

E. F. SPRAGUE v. THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY et al

No. 13,843

Supreme Court of Kansas

December 1, 1904

Decided July, 1904.

Error from Lyon district court; DENNIS MADDEN judge.

STATEMENT.

THE plaintiff by this proceeding seeks to reverse the orders rulings and judgment made and rendered by the court below against him in an action brought to recover damages alleged to have been the result of a fire set by defendant's employees while operating its engines and conducting its business. Among the many grounds of negligence alleged and relied upon for a recovery are the following:

"Plaintiff alleges that on the 4th day of September, 1901, in said city of Emporia, county and state, said defendant railway company contrary to its duty in that regard, by itself and its agents and servants, carelessly and negligently failed to have and keep its grounds and right of way in said city free and clear from dry and combustible materials, and carelessly and negligently permitted dry and combustible wooden sheds and wooden buildings with wooden roofs to be and remain upon its said grounds and right of way close to its railroad-tracks and where they were liable to and would be ignited by sparks and fire from its engines.

"That each and every of the engineer and engineers, the fireman and the firemen of the engine and engines of the defendant railway company which started said fire were, at and about the time of its starting, and for a long time prior thereto had been, habitually incompetent, inexperienced, unskillful negligent and careless, of each and all of which said defendant railway company at all of said times had notice and knowledge; that at the time when said fire was started said engineer and engineers, fireman and firemen, by reason of such incompetence, inexperience, unskillfulness, negligence, and carelessness, ran, operated and handled such engine and engines in an unskillful, incompetent, improper, negligent and careless manner, and by reason thereof said fire was started.

"And that none of the engines of said defendant railway company which was used and operated on said railroad at said place, at and about the time of the setting out and communicating of said fire, was supplied with suitable and safe spark-arresters and netting, in good order and safe condition; but plaintiff is unable to allege more specifically the particular engines in question, or the details of the unsuitableness and lack of safe condition, design and order of said spark-arresters and netting.

"That at said time and place, in the operation by said defendant railway company of its said railroad, one or more of the engines used and operated by the defendant railway company, by itself and its agents and servants, set out and communicated fire; that said fire was caused by the operation of said railroad and was set out and communicated by reason and as the result of each and every of the particular acts, conduct, omissions and defaults of and in the carelessness and negligence of said defendant railway company, and of its agents and servants, as hereinbefore stated; that said fire ignited and burned the wooden sheds and wooden buildings with wooden roofs hereinbefore referred to, upon the grounds and right of way of the defendant railway company, and spread and communicated continuously and forthwith to the said premises of the plaintiff, and his real and personal property situated thereon."

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

1. RAILROADS -- Injury by Fire -- Evidence. Where there is no question involved as to the emission of igniting sparks by a particular locomotive-engine, or that it would throw such sparks to the place where a particular fire is alleged to have started, it is not error for the court to refuse to permit the plaintiff to show that other engines of the company had emitted igniting sparks shortly before, and immediately after, the fire in question.

2. RAILROADS -- Combustible Material -- Leasing Right of Way. A railroad company is not absolved from the duty of keeping its right of way clear and free from combustible material by leasing a portion thereof to a private person, and it may be made to respond in damages for fire started on the portion so leased by reason of combustible material thereon.

Buck & Spencer, W. A. Randolph, John H. Atwood, and John G. Egan, for plaintiff in error.

A. A. Hurd, and O. J. Wood, for defendants in error.

GREENE J. All the Justices concurring.

OPINION

GREENE, J.:

One of the principal questions in this case arises on plaintiff's exception to the ruling of the court excluding evidence offered by him to prove that other engines at other times, immediately before and after the fire in question, had emitted sparks and set fire to grass and other combustible material in the vicinity where the fire originated. This evidence was offered for the purpose of showing the origin of this fire. The plaintiff, in his opening statement to the court and jury, identified the particular engine that set the fire which caused the damage as No. 2319. There was no contention by the defendant that a loco motive-engine could not throw sparks over the distance between its tracks and the sheds where it is alleged that the fire started. In the absence of such question evidence that other engines driven at other times by other persons had thrown sparks which had ignited combustible material in the vicinity of the fire in question was not competent.

After a careful examination of the authorities cited by plaintiff in error in support of his contention, and a research of others, we have been unable to find support for his theory. We believe it may be said, with at least a reasonable degree of certainty, that such authorities do not exist. Language carelessly used by the courts, while discussing kindred questions, may be found, which, upon a cursory examination, might appear to sustain such principle, but a more critical investigation will disclose that this precise question was not involved or decided. Where a particular engine is alleged to have set the fire, and the question is whether a locomotive-engine would throw igniting sparks, or would throw them the distance claimed, evidence that other engines of the defendant, similarly constructed, and under similar circumstances, had thrown igniting sparks that distance is properly admissible. Where, however, the engine which set the fire cannot be identified, and the origin of the fire is unknown, evidence that other engines owned and operated by the defendant had, under similar circumstances, both before and after the fire in question, thrown igniting sparks which caused other fires is competent because of the difficulty of otherwise proving that the fire in question was started by sparks from a locomotive-engine of the defendant. Such uncertainty and difficulty does not exist where the engine which is alleged to have thrown the igniting sparks is known. In the present case the identity of the engine was known; the negligence relied upon to support a recovery was that the particular engine was defectively constructed, not supplied with the latest and best approved spark-arrester, and that its operators were incompetent and negligent in its management. Under such circumstances evidence of the negligent and incompetent management of other engines at other times by other employees, or the defective construction or lack of proper spark-arresters or other appliances, would not assist in determining whether the identified engine was defective or lacking in any of its parts, or whether it was negligently or incompetently managed. Such evidence would tend to confuse, rather than to make plain, the fact in issue.

The following authorities show the position taken by the courts and commentators on this question, and we think they fully sustain our position. In Henderson v. Railroad Co., 144 Pa. 461, 22 A. 851, 16 L. R. A. 299, 27 Am. St. Rep. 652, it was said:

"When the fire is shown to have been caused, or, in the nature of the case could only have been caused, by sparks from an engine which is known and identified, the evidence should be confined to the condition, management and practical operation of that engine; and testimony tending to prove defects in other engines of the company is irrelevant and inadmissible."

In Gibbons v. The Wisconsin Valley Railroad Co., 58 Wis. 335, 17 N.W. 132, it was said:

"Where, in an action for the damage done by a fire alleged to have been set by a locomotive, there is no evidence that the fire was caused by any other than one of two particular locomotives, evidence as to other fires along the same line of road caused by locomotives other than those two, is inadmissible."

On page 340 it was also said:

"In cases where it is shown, either by positive or circumstantial evidence, that some locomotive of the company caused the fire, without the identification of any particular one, such evidence might have weight in showing the negligence of the company. There may be cases which have gone further than this in the admission of such evidence, but they do not appear to us authority in reason."

To the same effect is the case of First Nat. Bank v. L. E. & W. R. R. Co., 174 Ill. 36, 50 N.E. 1023, where it was said:

"Where the particular locomotive alleged to have caused the fire for which suit is brought against a railroad company is identified, evidence of other fires set by different locomotives of the company, before and after the fire complained of, is not admissible."

In Ireland v. Railroad Co., 79 Mich. 163, 44 N.W. 426, it was said:

"Where in a suit against a railroad company for setting fire to plaintiff's factory by a defective engine, the particular...