The Missouri v. Lycan

• Decision Date: 08 January 1897
• Docket Number: 9253
• Court: Kansas Supreme Court
• Parties: THE MISSOURI, KANSAS & TEXAS RAILWAY COMPANY v. BELLE LYCAN

47 P. 526

57 Kan. 635

THE MISSOURI, KANSAS & TEXAS RAILWAY COMPANY v. BELLE LYCAN

No. 9253

Supreme Court of Kansas

January 8, 1897

Decided January, 1897.

Error from Crawford District Court Hon. J. S. West, Judge.

AFFIRMED.

THE petition in this case, filed in the Court below by Belle Lycan, as plaintiff, alleged that the defendant was a corporation operating a line of railroad in Crawford County and, second:

"That this plaintiff, on the 18th day of October, 1891, and for a long time prior thereto, was the owner of, and possessed of the following described lands, to wit: The southeast quarter and the east half of the southwest quarter of section four township twenty-eight, of range twenty-two in Crawford county, Kansas, upon which said lands there were growing and standing large and valuable trees, shrubs, vines, apples rick of straw, as follows, to wit: [here follows a particular description of the number and kind, and value of each], and all of the foregoing items, consisting of trees, vines bushes, apples and straw, were the property of this plaintiff, and were of the aggregate value of $ 7,383. . . ."

"Fourth. Plaintiff says that on or about the 18th day of October, 1891, the said defendant was operating its said railroad hereinbefore mentioned, and did run a large passenger train, No. 4, drawn by locomotive engine, numbered --, along and over said railroad in Crawford county, Kansas, and when said passenger train, and locomotive, or engine, was passing through and over said section 4, township 28, range 22, in Crawford county, Kansas, at about 12:30 o'clock P. M. of that day near to this plaintiff's land, said defendant carelessly, negligently, and unlawfully permitted large flames and sparks of fire and live cinders to escape from its said locomotive or engine, by carelessly, negligently and unlawfully failing to provide, and have sufficient safety screens or spark arresters attached to its said engine to prevent fire and sparks from escaping from its said locomotive or engine, and, by reason of the said defendant's negligent, unlawful and careless manner, in which it was operating said railroad, the grass beside said line of railroad, and on said defendant's right of way became, and was, ignited by and from sparks and coals of fire emitted and thrown from its said locomotive or engine.

"Fifth. Plaintiff says that the said defendant carelessly, negligently, and unlawfully permitted tall grass and weeds, and a large amount of combustible material to grow, be, and remain on the right of way of the said railroad company, and by reason of said defendant's said careless, negligent, and unlawful manner of operating said railroad by failing to provide sufficient safety screens and spark arresters for its said engine or locomotive, and permitting said grass, weeds and combustible material to grow, be, and remain on its said right of way, it permitted fire and sparks to escape from its said locomotive or engine, and which said fire and sparks, so escaping or thrown, or permitted to escape, or be thrown from its said locomotive or engine, the grass, weeds, rubbish and combustible material so carelessly, negligently and unlawfully permitted to be and remain along by, and adjacent to, said line of railroad, became and was ignited; and the said defendant carelessly, negligently and unlawfully permitted said fire to spread and communicate to the premises of this plaintiff, and which said fire burned and destroyed the apple trees, budded peach trees, seedling peach trees, walnut trees, cherry and plum trees, hedge fences, gooseberry bushes, grape vines, blackberry vines or bushes, apples and straw hereinbefore set forth, and the property of this plaintiff to her damage in the sum of $ 7,383."

To this petition the defendant demurred, and the demurrer was overruled. Thereafter an answer containing a general denial and other matters of defense was filed. The jury returned a general verdict in favor of the plaintiff for $ 2,140 damages, and $ 175 attorney's fees, and also made answers to special questions, among which are the following:

"9. What property belonging to the plaintiff was burned and destroyed by this fire, if any, stating fully all items?

Ans. 287 apple trees of various kinds killed

$ 1,435

516 forest trees of various kinds killed

129

41 budded peach trees various kinds killed

41

160 seedling peach trees various kinds killed

40

10 grape vines various kinds killed

5

One-half acre blackberries killed

25

30 bunches gooseberries killed

6

120 rods hedge fence killed

60

164 apple trees, body and limbs damaged

320

Plums and cherries

28

87 walnut trees

43

$ 2,140

"34. Is it not a fact that all of the apple trees, peach trees, walnut trees, plum and cherry trees, gooseberries, grape vines and blackberry vines and bushes were planted and growing upon said land for the fruit they would produce and for no other purpose whatever? A. Yes, except peach and walnut, which were for shade and wind break also."

"43. Is it not a fact that said engine and the safety screen and spark arrester were examined by Engineer S. J. Thurber, on arrival of said engine at Sedalia, Missouri, on the evening of October 18, 1891, and on the morning of October 19, 1891, the safety screen and spark arrester were then in good condition and properly adjusted? A. Yes.

"44. Is it not a fact that said engine was carefully and prudently handled and managed by said Engineer S. J. Thurber and his fireman, S. Bowser? A. Yes.

"45. You may state what, if anything, the defendant, its employes, agents or servants, could have done that they did not do to prevent a communication of said fire to the plaintiff's land. A. Burned off right of way.

"46. If defendant had cleaned off and burned its right of way would fire have been communicated to the land claimed by the plaintiff? A. No.

"47. Is it not a fact that a 4 x 4 mesh netting is the closest that can be used in coal-burning engines? A. Yes."

"66. If you find said fire of October 18, 1891, which destroyed the property described by plaintiff in her petition was caused by the negligence of defendant, you may then state fully all the negligence of the defendant which caused said fire. A. By not burning off right of way."

"74. State whether the fire of October 18, 1891, which destroyed the property described by plaintiff in her petition was accidental. A. No."

The defendant moved for judgment on the special findings, and, also, for a new trial. Both motions were overruled, and judgment was entered for the amount of the verdict and attorney's fees. The defendant now seeks a reversal of this judgment.

T. N. Sedgwick, for plaintiff in error.

Wells & Woolley, and J. D. McCleverty, for defendant in error.

ALLEN J. All the Justices concurring.

OPINION

ALLEN, J.

There are 17 specifications of error in the brief. Most of them, however, merely present in different forms the same proposition, the substance of which is, that the defendant failed to allege and show that the property destroyed was a part of the freehold and added to the value of the farm, and that the destruction thereof diminished its value. It is urged that the petition is insufficient for the purpose of a recovery as for an injury to the land, and that the case was erroneously tried on that theory. The petition alleges that the plaintiff was the owner of the land, and that the trees, etc., were growing and standing upon it; that the defendant negligently permitted fire to escape from its engine, and that such fire spread and burned them. We fail to perceive any essential fact omitted from the petition. A fruit tree, bush, or vine kept standing or growing for its fruit, or a shade or ornamental tree or bush, is a part of the realty, and presumably adds to the value of it. There is nothing whatever in the petition or evidence indicating that the orchard that was destroyed bore any different relation to that realty than orchards usually do to the land on which they stand; and it hardly seems a question open to discussion whether orchards and ornamental trees and shrubs are to be treated as a part of the realty. There is no question here concerning nursery stock or severed timber. The question as presented by objections to the testimony offered, varies but little, in substance, from that raised on the demurrer to the petition. It is that proof was made of the amount of damages to the farm without any corresponding averment in the petition, which stated the value of the different trees and shrubs destroyed and injured. The facts stated in the petition showed an injury to the freehold, and it concluded with the statement that that injury was to plaintiff's damage in the sum for which she asked judgment. It is never necessary, nor even proper, to plead conclusions of law, nor deductions from the facts on which a cause of action arises. It is always desirable that the pleader state concisely the facts constituting his cause of action, and thereupon demand the relief he is entitled to. The trial court rightly held that testimony concerning the value of the trees should be confined to their value to the farm and as a part of it.

The defendant also objected to witnesses being allowed to state the value of the trees and other things destroyed as a part of the freehold, on the ground that this was allowing them to...