St. Louis, I. M. & S. Ry. Co. v. Yonley

• Decision Date: 08 November 1890
• Citation: 14 S.W. 800
• Parties: ST. LOUIS, I. M. & S. RY. CO. v. YONLEY.
• Court: Arkansas Supreme Court

Page 800

14 S.W. 800

ST. LOUIS, I. M. & S. RY. CO. v. YONLEY.

Supreme Court of Arkansas.

November 8, 1890.

On rehearing. For former report, see 13 S. W. Rep. 333.

J. M. Moore, for appellant. Ratcliffe & Fletcher, for appellee.

HEMINGWAY, J.

The appellee brought suit against the appellant to recover the damage sustained by reason of the burning of a bridge which belonged to appellee, and was situate near the appellant's right of way. The complaint alleged that the appellant, "through its officers, agents, and employes, caused the timber, grass, and stubble along its right of way and near the bridge to be set on fire at different places, everything at the time being very dry, and in a very combustible condition, and so carelessly, negligently, and recklessly fired the same, and so carelessly, negligently, and recklessly managed the same, after the fire was started, that fire was communicated thereby to said bridge, and the same was totally destroyed." The answer denied that the fire was set out by the officers, agents, or servants of the appellants, or that the burning was caused by negligent conduct on the part of its officers, agents, or employes. From a judgment in favor of the plaintiff, the defendant prosecutes this appeal. The cause was submitted at the last term of this court, and upon consideration we rendered a judgment of reversal; but, upon a motion for rehearing, we set aside the judgment for the further consideration of matters not discussed in the former opinion. We then held that the party who set out the fire which it was claimed caused the injury was an independent contractor, and not an officer, agent, or employe of the appellant. No exception is urged to that ruling. But it is contended that the appellant is liable for the injury for two reasons, to-wit: (1) Because the law imposes upon a railway company the duty to keep its right of way and track free of such matter as is liable to be ignited by sparks or cinders from its engines, and that it cannot delegate to another the performance of that duty. (2) Because the setting out of fire necessarily endangered the property of plaintiff, and the company, having caused it to be set out would be liable whether it was set out by an independent contractor, or by its agents.

If the injury complained of had arisen from the escape of sparks from a passing engine, and the negligence charged had been in permitting inflammable matter to remain on the track or right of way, and if the defendant had sought to escape liability for the injury by showing that it had made a contract to have the matter cleared off, and that its presence was due to the negligence of the contractor, then the first position taken by counsel would be strong, and receive support from the authorities they cite. But the injury is charged to have arisen not because of the failure to keep the right of way clear, but by reason of the clearing of it in a negligent, careless, and reckless...