The Atchison v. Matthews

• Decision Date: 10 July 1897
• Docket Number: 10121
• Court: Kansas Supreme Court
• Parties: THE ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY v. W. T. MATTHEWS et al

49 P. 602

58 Kan. 447

THE ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY v. W. T. MATTHEWS et al

No. 10121

Supreme Court of Kansas

July 10, 1897

Decided January, 1897.

Error from Cloud District Court. Hon. F. W. Sturges, Judge.

Judgment affirmed.

A. A Hurd and Stambaugh & Hurd, for plaintiff in error.

J. W Sheafor, for defendants in error.

OPINION

ALLEN, J.

This action was commenced by W. T. Matthews and M. L. Trudell against the Atchison, Topeka & Santa Fe Railroad Company to recover damages for the destruction of their elevator building in Miltonvale, which they alleged was burned by fire negligently permitted to escape from one of the defendant's locomotives. The trial in the District Court resulted in a verdict and judgment in favor of the plaintiffs for $ 2,094 damages and $ 225 attorneys' fees. The building was situated on the right of way of the Union Pacific Railway Company, about eighty-eight feet north from the track of the defendant. The fire was first discovered between half past six and seven o'clock. The evidence favorable to the plaintiffs, which seems to have been accepted by the jury, tends to show that the elevator had been operated on the day of the fire, which occurred April 17, 1893; that some dust and trash was necessarily scattered around the outside of the building from a spout through which corncobs were discharged; that, at about six o'clock, a freight train going west passed along the defendant's road without stopping; that, as the train came in, steam was shut off for a time, but that before it passed the elevator steam was put on again, and that as it passed the elevator office, located a short distance east of the elevator building, cinders were thrown from the smokestack to the office building; that the wind was then blowing from the southwest; that about a week before this fire, another one had been started in that vicinity by the same engine; that the fire originated on the outside of the south side of the engine and boiler rooms, which were located at the west end of the elevator, and that, while there was a fire in the furnace in the boiler room of the elevator, it had been safely fixed so that there was no danger of its escaping and burning the building. Some of the evidence on the part of the defendant tended to show that the fire originated inside the boiler room.

While the evidence in this case was wholly circumstantial, the defendant's contention that there is no proof to support the verdict cannot be sustained. The proof with reference to fires caused by locomotive engines is nearly always of the same character, though of different degrees of convincing force. Numerous objections to the testimony were raised. Proof was allowed as to the cost of the building, but as the verdict is for an amount below the lowest estimate by any witness of the value of it, the error in the admission of the testimony is of no importance. Testimony with reference to other fires that originated from engines on the defendant's road was also allowed, without identification of the engine attached to this freight train, or the engineer in charge of it, as the one causing the fires. We think the identification should have preceded the admission of such testimony; but the court in the progress of the trial remarked, "Unless you can connect this engine with those fires, I will instruct the jury that this evidence is not to be considered." In view of all the testimony in the case, the special findings, and this remark from the court in the presence of the jury, the error in the admission of this testimony does not appear to be sufficient to warrant a reversal of the judgment. We think the instructions were very full, clear, and fair.

We do not regard the decision of the Supreme Court of the United States in G. C. & S. F. Rly. Co. v. Ellis (165 U.S. 150, 17 S.Ct. 255, 41 L.Ed. 666) as conclusive against the validity of our statute authorizing the recovery of attorneys' fees in cases of this kind. The statute of Texas, under consideration in that case, was quite different in principle from the one on which the judgment in this case was rendered. Our statute is somewhat in the nature of a police regulation, designed to enforce care on the part of railroad companies to prevent the communication of fire and the destruction of property along railroad lines. It is not intended merely to impose a burden on railroad corporations that private persons are not required to bear, and the remedy offered is one the Legislature has the right to give in such cases. This is the view heretofore held by this court, which we see no reason for changing. St. L. & S. F. Rly. Co. v. Snaveley, 47 Kan. 637, 28 P. 615; St. L. & S. F. Rly. Co. v. Curtis, 48 id. 179; St. L. & S. F. Rly. Co. v. McMullen, 48 id. 281; Mo. Pac. Rly. Co. v. Henning, 48 id. 465.

We find no substantial error in the refusal of the court to require the jury to answer certain special questions. If all of them had been answered favorably...