Stewart v. Quincy, Omaha & Kansas City Railroad Company
| Decision Date | 04 April 1910 |
| Parties | B. F. STEWART, Respondent, v. QUINCY, OMAHA & KANSAS CITY RAILROAD COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Daviess Circuit Court.--Hon. Arch B. Davis, Judge.
REVERSED AS TO FIRST COUNT, AFFIRMED AS TO SECOND COUNT.
Cause reversed as to first count and affirmed as to second count.
Dudley & Selby, J. G. Trimble and Willard P. Hall for appellant.
J. C Wilson and Garland Wilson for respondent.
The petition in this case is in two counts. In the first plaintiff claims damages for injury to his meadow and the hay crop thereon caused by fire alleged to have been started by a spark emitted from a passing engine on defendant's railroad. In the second count, plaintiff claims damages for a mule colt killed at a crossing of defendant's railroad on plaintiff's farm, alleging in the petition that the death of the animal was the direct result of defendant's negligence. The answer to the first count is a general denial; to the second, a general denial and plea of contributory negligence. At the trial, defendant requested the court to give a peremptory instruction as to each count of the petition but the requests were refused and the case was sent to the jury on both counts. The issue of contributory negligence was not embraced in any of the instructions asked by defendant. Verdict and judgment were for plaintiff on the first count for $ 45, and on the second count for $ 75. Defendant appealed.
The only point advanced here by defendant for a reversal of the judgment on the first count is that the evidence discloses that negligence of the plaintiff directly contributed to the burning of the meadow. Contributory negligence being an affirmative defense cannot be treated as an issue of fact to go to the jury unless it be pleaded in the answer. Where, as in the case in hand, the defendant omits to plead it as a special defense, contributory negligence will not be permitted under a demurrer to the evidence to defeat the cause of action, except in cases where existence of such negligence as a proximate cause of the plaintiff's damage appears as an indisputable conclusion from the facts and circumstances in evidence most favorable to plaintiff. If there is any room for reasonable minds to differ about the inference that should be drawn from the evidence, the issue becomes one of fact, not of law, and the defendant cannot avail himself of it because of his failure to raise it in his answer.
This question requires an examination of all the material evidence bearing on that issue. Plaintiff's farm is located in Daviess county, is bisected by defendant's railroad through it from northeast to southwest. The right of way is of the usual width, one hundred feet. The plaintiff's house is situated on the north side of the railroad, and the meadow east of the house and south of the railroad. The engine which set out the fire passed going southwest about noon while plaintiff was eating his dinner. About one o'clock he left his house in a wagon and drove to the southeast part of his farm where he had been previously working. In crossing the railroad he noticed a small fire on the right of way which had then burned over about ten square feet of ground. He passed on without stopping to put the fire out, which he could have done without much effort, and drove on to his work. At about two o'clock his wife came to him and informed him that the meadow was afire. He hastened to the place and with the assistance of another person, he extinguished the fire after it had destroyed the grass growing on his meadow and some that had already been harvested.
It is contended that the weather was very dry and had been for so long a time that grass and other vegetation were in a most inflammable condition. There is some confusion as to which way the wind was blowing. At first plaintiff stated that when he went to his work after dinner it was blowing from the south but that it had changed subsequently and was blowing from the northwest at the time he was at the fire in the meadow, and he is corroborated in this respect by the person who assisted in putting it out.
When he first discovered the fire it was within about ten rods of his meadow which adjoined defendant's right of way until it got in proximity to plaintiff's meadow and then we presume that the wind at that time blowing from the northwest caused it to enter and spread out over the meadow. The undergrowth consisted of clover which was entirely destroyed but some of the stalks of the timothy were left standing.
A witness for defendant, plaintiff's brother, testified that the fire from the place where it started could be seen where it had burned along...
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