The Kansas City v. Perry

• Decision Date: 06 December 1902
• Docket Number: 12,800
• Citation: 65 Kan. 792,70 P. 876
• Court: Kansas Supreme Court
• Parties: THE KANSAS CITY, FORT SCOTT & MEMPHIS RAILROAD COMPANY v. CHARLES PERRY

70 P. 876

65 Kan. 792

THE KANSAS CITY, FORT SCOTT & MEMPHIS RAILROAD COMPANY v. CHARLES PERRY

No. 12,800

Supreme Court of Kansas

December 6, 1902

Decided July, 1902.

Error from Bourbon district court; W. L. SIMONS, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. RAILROADS -- Injury by Fire -- Circumstantial Evidence. The fact that soon after the passing of an engine a fire starts near a railway-track in an enclosed field covered at the time with a growth of highly inflammable vegetation, and travels before a high wind in a direction away from the track, is sufficient to warrant a jury in finding that the fire was caused by the operation of the railroad, without its appearing that the engine emitted sparks or live cinders or was put to special exertion, and without further proof excluding other possible origins.

2. RAILROADS -- Measure of Damages. In an action for damages for the injury and destruction of fruit-trees in an orchard and a hedge forming a fence, an instruction that the measure of plaintiff's recovery is the amount and value of the damage to the thing injured, and the value of the thing destroyed as an appurtenance to, and part of, the realty, is proper.

Pratt Dana & Black, for plaintiff in error.

John H. Crain, and W. R. Biddle, for defendant in error.

BURCH J. All the Justices concurring.

OPINION

BURCH, J.:

Charles Perry brought suit against the Kansas City, Fort Scott & Memphis Railroad Company in the district court of Bourbon county to recover damages resulting from two fires claimed to have been occasioned by the operation of the railroad company's trains. The first fire occurred November 17, 1898, and the second fire October 9, 1899. The testimony disclosed that each fire started near the outside of the railroad company's right of way, and at all events not more than sixty-one feet from the center of the track. Both fires started in an enclosed cultivated field, and each time the ground was covered with very dry, combustible vegetation. In each case a considerable wind was blowing and the course of the fire was away from the railroad-track. One fire traveled at about the speed of a horse and the other as fast as a man could run. In each case the tenant of the farm discovered the fire from the smoke driving from the field toward the farmhouse. One fire was discovered a minute or two after a passenger-train had gone by, and the other a few minutes after a freight-train had passed, the freight-train having been preceded by a passenger-train. No other facts were adduced in evidence relating to the origin of the fires, and the question for determination is the sufficiency of the evidence produced to support a verdict against the railroad company.

It is contended by counsel for the railroad company that since there was no evidence at all that either train threw sparks or live cinders, or emitted smoke, or was put to special exertion, and no further evidence than that stated above of the non-existence of any other adequate cause, the fact was not established that the fires complained of were caused by the operation of the railroad, under section 5923, General Statutes of 1901. There is no disposition to question the rule that, in the absence of positive proof of the means of ignition, a full conviction of the fact may be generated by circumstances. (A. T. & Santa Fe Rld. Co. v. Bales, 16 Kan. 252; Railroad Co. v. Matthews, 58 id. 447, 49 P. 602.) But it is argued that, to establish the relation of cause and effect between the passing of the trains and the fires in question, the jury must have invaded the realm of sheer conjecture and guess.

It is true that the origin of the fires must rest upon proof and not upon possibility; but it is not true, as stated in Musselwhite v. The Receivers, 4 Hughes 166, Fed. Cas. No. 9972, that the test of the value of circumstantial evidence in cases of this character is that no other theory but the hypothesis upon which the conclusion is based can be formed. If the circumstances present a reasonably adequate cause, they will be sufficient to go to the jury, even though some other cause which may be suggested may not be excluded.

In discussing the probative force of circumstantial evidence, Professor Greenleaf says: "In civil cases it is sufficient if the evidence on the whole agrees with and supports the hypothesis which it is adduced to prove." (Greenl. Ev. § 13a.) In The Louisville, New Albany and Chicago Railway Company v. Balch, 122 Ind. 583, 23 N.E. 1142, the rule was stated as follows: "If circumstances are proved authorizing an inference in favor of a plaintiff, it is proper for the jury to draw it, and their verdict cannot be disturbed." See, also, Railroad Co. v. Matthews, supra. Can it be said, then, that the conclusion of the jury from the facts before them was legitimate? Courts of sound judgment have so decided.

In the case of Smith v. London & S.W. Ry. Co., determined in the exchequer chamber, 6 L.R.C.P. 14, the facts bore considerable similarity to those involved in this case, and, as set forth in the head-note of the report, were as follows:

"Workmen employed by the defendants, a railway company, after cutting the grass and trimming the hedges bordering the railway placed the trimmings in heaps between the hedge and the line, and allowed them to remain there fourteen days during very...