The Atchison v. Ayers

• Decision Date: 07 December 1895
• Docket Number: 7774
• Citation: 42 P. 722,56 Kan. 176
• Court: Kansas Supreme Court
• Parties: THE ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY v. GEORGE W. AYERS

42 P. 722

56 Kan. 176

THE ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY v. GEORGE W. AYERS

No. 7774

Supreme Court of Kansas

December 7, 1895

Decided July, 1895.

Error from Marion District Court.

ACTION by George W. Ayers against The Atchison, Topeka & Santa Fe Railroad Company. Plaintiff had judgment, and defendant comes to this court. The opinion, filed December 7, 1895 states the nature of the action and the material facts.

Judgment reversed and case remanded.

A. A Hurd, and Bowman & Bucher, for plaintiff in error.

Keller & Dean, for defendant in error.

MARTIN C. J. All the Justices concurring.

OPINION

MARTIN, C. J.:

I. The original action was brought by the defendant in error against the plaintiff in error to recover damages for the alleged negligent burning of a grain elevator, a hay-press, some baled and a quantity of loose hay, and other property. The trial resulted in a verdict and judgment for the plaintiff, September 30, 1890, for $ 2,624.44 damages, $ 150 attorney's fee, and costs taxed at $ 272.75. The allegation of negligence was as follows:

"While said defendant was engaged in operating the defendant's railroad, and while running its locomotive and train along said railroad and past the premises of plaintiff, as aforesaid, the defendant so carelessly and negligently managed and controlled its locomotiveand train that fire escaped therefrom, and on the 29th day of March, 1890, burned the following described property belonging to the plaintiff."

The instructions given to the jury assumed that on proof of the setting out of the fire by the defendant's locomotive it devolved upon the railroad company to show, not only that the locomotive was properly and carefully managed and controlled, but that it was sufficient and in good condition and repair. This would doubtless be so under the act of 1885, (P 1321, Gen. Stat. 1889,) if the allegation had been general, to the effect that the fire was negligently caused by the defendant in operating its railroad; but the averment restricts and limits the charge to the negligent. management and control of the locomotive and train, and, in the absence of any amendment, the court was. not warranted in saying that in order successfully to defend itself the company must prove that the locomotive was sufficient and in good condition and repair. The cause of action in St. L. & S. F. Rly. Co. v. Fudge, 39, Kan. 543, originated prior to the enactment of the statute of 1885, but the general principle of pleading therein as to limiting the charge of negligence is applicable even under the statute, where the allegation of negligence is specific and not general. The defendant had a right to assume that any complaint of the insufficiency or want of repair of the locomotive was waived, the plaintiff relying upon the specific charge that the fire was caused by its negligent management and control. As further bearing on the limitation of the issue by the pleadings, see Clark v. Mo. Pac. Rly. Co., 48 Kan. 654, 662, 29 P. 1138.

II. The defendant pleaded and largely relied upon the contributory negligence of the plaintiff as a defense, such negligence arising from permitting dry hay to accumulate around the building in large quantities, extending therefrom to the tracks of the company, so as readily to catch fire from sparks emitted from the locomotive when properly managed. A great deal of the evidence related to the condition of the building and the premises around it, the same being used for the baling of hay and the storing of the same, both baled and loose. The defendant submitted 10 particular questions of fact in relation to the condition of different parts of the premises, three questions pertaining to the age of different parts of the building, and one as to the same never having been painted. The first 10 questions were objectionable in form, No. 1 being as follows: "Is it not a fact that the fire caught in the dry grass and rubbish that had accumulated near the northeast corner of the building?" instead of directly asking the jury "Did the fire catch in the dry grass," etc. Questions in a negative or a leading form should never be submitted, and these were both leading and negative, and any direct answer to them by yes or no was liable to be misunderstood. The court refused to submit the 14 questions referred to, and was proceeding to state the reasons therefor, when defendant's counsel objected to any argument in the presence of the jury, but this was overruled, the defendant excepting, and the court, referring to the first 10 questions, said, among other things: "Suppose these questions should be answered as the defense asks that they should be answered--that this combustible material was scattered around there--it does not show that the plaintiff was guilty of negligence. . . . It gives no light to the court or any reviewing court." We regard the remark as improper in the presence of the jury. It was a statement as a proposition of law that the scattering of combustible material upon and over the plaintiff's premises was not negligence. That was one of the principal questions to be submitted to the jury, and they would be very liable to interpret this remark of the judge as a declaration that all the evidence as to the existence of combustible matter around and about the premises was immaterial. The first 10 questions seem quite pertinent to the issue although the answers to them in the manner most favorable to the defendant may not have been sufficient alone to overthrow a verdict in favor of ...