The Atchison v. Osborn
| Decision Date | 11 December 1897 |
| Docket Number | 10323 |
| Citation | 51 P. 286,58 Kan. 768 |
| Court | Kansas Supreme Court |
| Parties | THE ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY v. M. H. OSBORN |
Decided January, 1897.
Error from Harper District Court. Hon. G. W. McKay, Judge.
Judgment reversed and cause remanded.
A. A Hurd and Stambaugh & Hurd, for plaintiff in error.
Sankey & Campbell, for defendant in error.
M. H Osborn brought this action against the Atchison, Topeka & Santa Fe Railroad Company to recover damages for the destruction of several stacks of wheat by a fire alleged to have been negligently started by one of the Company's locomotives. The wheat was stacked on Osborn's premises, which adjoined the right of way and depot grounds of the Railroad Company, at Danville; and it appears that the fire started immediately after a passenger train of the Company had passed over the road and departed from that station. The acts of negligence charged were: First, careless management of the engine; second, defective engine, and negligently failing to employ suitable means to prevent the escape of fire therefrom; and, third, negligently allowing dead grass and other combustible matter to remain on the right of way. The ground relied upon at the trial, and the only negligence found by the jury, was "carelessness in handling the engine."
It appears that the stubble remaining after the wheat was cut was about fifteen inches high, and there had grown up in it a tickle grass, which had ripened and was very dry and combustible when the fire occurred. The agent of the Company had requested the plaintiff to plow fire-guards for the protection of his wheat; and after the agent had promised to pay him at the rate of three dollars per day for plowing fire-guards, he plowed two sets of furrows near the right of way, after which, the employees of the Company burned out the stubble and grass between the furrows, thus making a fire-guard about one hundred feet wide. Although Osborn was plowing on either side of the stacks near the time of the fire, no guards were plowed immediately around the stacks, nor was any plowing done across the end of the unplowed ground which extended to the right of way, other than the fire-guard already mentioned.
There was testimony tending to show that an inspection was made, shortly before and shortly after the fire, from which it appeared that the engine was in good condition, and also that it was supplied with modern improvements calculated to prevent the escape of fine.
Soon after the fire, Osborn procured nine of his neighbors, who met and measured the ground from which the wheat was taken that was destroyed, and estimated the number of bushels that were in the stacks, the value of the wheat, and the value of the straw; and their conclusions were reduced to writing, and signed by all the parties participating. At the trial of the case, several of these persons were called as witnesses, and were permitted to testify as to the written memorandum of the estimate which all had united in making. Some of the witnesses had personal knowledge of the extent of the ground from which the burnt wheat was taken, and had also seen the wheat growing and knew something of its character and quality. Some of them had assisted in harvesting it, and were therefore well qualified to judge of the acreage, as well as the quantity and quality, of the wheat destroyed. While the witnesses were not warranted in giving the conclusions reached...
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