The Atchison v. Geiser

• Citation: 68 Kan. 281,75 P. 68
• Decision Date: 09 January 1904
• Docket Number: 13,414
• Court: United States State Supreme Court of Kansas
• Parties: THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY v. JACOB GEISER

75 P. 68

68 Kan. 281

THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY v. JACOB GEISER

No. 13,414

Supreme Court of Kansas

January 9, 1904

Decided January, 1904.

Error from Leavenworth district court; J. H. GILL-PATRICK, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. RAILROADS -- Injury by Fire -- Question for Jury. The statute of this state makes causing of fire by the operation of a railroad prima facie evidence of negligence on the part of the company. This being shown, it becomes a question of fact for the jury, not of law for the court, to determine whether such prima facie case is overcome by the evidence of the company that the engine which set out the fire was equipped with the latest devices, in good repair, and being carefully managed by competent employees.

2. RAILROADS -- Evidence, Not Presumption, of Negligence. The fact of the setting out of fire by the operation of a railroad is evidence, not merely presumption of negligence, and as such must be met and overcome by evidence to the satisfaction of the jury.

3. RAILROADS -- Two Measures of Damages -- When Both Methods are Used. Either of two methods may be adopted in ascertaining the damage caused by the destruction of fruit-trees: (1) Their value as a distinct part of the land, if susceptible of such measurement; (2) the difference in the value of the land before and after their destruction; and where both methods are resorted to in the same case the damage must be ascertained by the jury from all the evidence.

A. A. Hurd, and Alfred A. Scott, for plaintiff in error.

Baker & Baker, for defendant in error.

CUNNINGHAM J. All the Justices concurring.

OPINION

CUNNINGHAM, J.:

The defendant in error recovered judgment for his damages occasioned from the burning of his orchard, the fire having been set out by one of the railroad company's engines.

The question of greatest moment here raised is whether it is a question of law for the court, or one of fact for the jury, to determine when the prima facie case of negligence made by showing that the fire was caused by the operation of the railroad is overcome by a showing on the part of the railroad that its engine was equipped with the latest and best appliances and managed in the most careful manner by competent employees. The railroad company puts its claim into the following assertion:

"The statutory presumption of negligence on the part of the railway company, raised by the evidence for the plaintiff, having been rebutted by positive evidence on behalf of the defendant, the plaintiff was not entitled to recover."

At the trial it claimed that this view should have been given to the jury by an instruction to return a verdict for the defendant.

The question presented is one of first instance in this court. Our statute (Gen. Stat. 1901, § 5923; Laws 1885, ch. 155, § 1) provides:

"That in all actions against any railway company organized or doing business in this state, for damages by fire caused by the operating of said railroad, it shall be only necessary for the plaintiff in said action to establish the fact that said fire complained of was caused by the operating of said railroad, and the amount of his damages, (which proof shall be prima facie evidence of negligence on the part of the railroad) . . . ."

In the case at bar sufficient evidence was offered by the plaintiff to make out a prima facie case. The railway company then offered proof tending to establish the fact that the engine which set out the fire was equipped with the latest and best appliances to prevent the escape of fire therefrom, was in good repair, and was being skilfully handled by competent employees. Here was a case of evidence against evidence. It is hardly fair to say that it was presumption against evidence, or evidence against presumption. The statute makes the setting out of the fire prima facie evidence of negligence. We think it is competent for the legislature to give this much of evidentiary weight to the fact of the causing of the fire. Ordinarily fires do not occur in the skilful management of well-constructed engines. If it is a question of evidence against evidence, or of a conflict of evidence, upon what theory would the court be authorized to take the decision out of the hands of a jury and pronounce, as a matter of law, that the railway company's witnesses were in all respects to be believed, and that their conclusions as to the condition of the engine and the skill of the employees were beyond the pale of contradiction?

We are not unaware of the fact that several courts have announced the rule that where the evidence of the defendant is clear and convincing the presumption of negligence arising because of the occurrence of the fire has been overcome, and the court should, as a matter of law, so declare. Among these cases are the following: Spaulding v. The Chicago & Northwestern Railway Company, 33 Wis. 582; Menominee River Sash and Door Co. v. Milwaukee & Northern R. Co., 91 id. 447, 65 N.W. 171; Kentucky Central R. R. Co. v. Talbot, &c., 78 Ky. 621; Southern Railway Co. v. Pace, 114 Ga. 712, 40 S.E. 723. The same principle is held in Dakota under a similar statute relating to the killing of stock. (Huber v. Chicago, M. & St. P. Ry. Co., 6 Dak. 392, 43 N.W. 819; Hodgins v. Railroad Company, 3 N.D. 382, 56 A. & E. Rld. Cas. 137, 56 N.W. 139.) But few, if any, of the cases adopting this view have been decided under statutes like our own.

Realizing the severity of a rule which would cast upon a plaintiff the burden of showing actual negligence in the construction or management of an engine, many courts, even before the passage of any statutes relative to the matter, have declared a rule growing out of convenience, that the occurrence of the fire raised the presumption of negligence. We greatly question whether this court-made rule has the gravity or authority of the statute; at least, the courts, having gone thus far, hesitated in going further, but paused and said that this presumption (and they called it but a presumption) would be overcome by clear and convincing evidence on the part of the railroad company that it had been guilty of no negligence, and added that whether it had been so overcome was a question of law for the court. Other courts, apprehending the anomalous position in which this places them, have labored hard to place the decision of this question of fact with the jury, by seizing upon the slightest and most intangible facts to relieve them of the duty of determining when such proof is clear and conclusive. ( Hoffman v. Chicago, Milwaukee & St. Paid Ry. Co., 43 Minn. 334, 45 N.W. 608; Burud v. Great Northern Ry. Co., 62 id. 243, 64 N.W. 562; Solum v. Great Northern Ry.Co., 63 id. 233, 65 N.W. 443.) a very careful examination of the entire question, we are fully persuaded that there is no adequate legal reason why these questions of fact should receive treatment different from others--why the weight of the evidence and the credibility of the witnesses should not be left to the determination of the jury in these matters as well as in ordinary cases. The theory of our practice is that questions of fact growing out of conflicting evidence shall be left to the determination of the jury. Here it is a question of fact, not one of law, whether the evidence of the negligence of the company, which legally follows a showing of the setting out of the fire, is overcome by the evidence of proper construction and competent management. The weight of authority and the present tendency of the courts sustain this view.

In the case of Great Northern Ry. Co. v. Coats, 115 F. 452, 53 C.C.A. 382, the exact question here presented is found -- namely, that as the railroad company had offered proof in substance that the engine was properly managed and that the company was guilty of no negligence in that respect, the court should have eliminated the question and withdrawn it from the jury, the presumption of negligence having thereby been overthrown. The court said:

"This presumption could only be overcome by testimony, and unless we apply to this class of cases a rule different from that which is applied to other cases, it was the province of the jury to determine the weight that should be accorded to the testimony which was introduced for that purpose, and also to determine the credibility of the witnesses who testified on that subject. It was well said by the supreme court of Minnesota in Karsen v. Railroad Company, 29 Minn 12, 15, 11 N.W. 122, when...