The St. Louis & San Francisco Railway Company v. Brown

• Decision Date: 01 March 1896
• Docket Number: 91
• Court: Kansas Court of Appeals
• Parties: THE ST. LOUIS & SAN FRANCISCO RAILWAY COMPANY v. GEORGE BROWN

45 P. 118

3 Kan.App. 260

THE ST. LOUIS & SAN FRANCISCO RAILWAY COMPANY v. GEORGE BROWN

No. 91

Court of Appeals of Kansas, Southern Department, Eastern Division

March 1, 1896

Opinion Filed May 8, 1896.

MEMORANDUM.--Error from Cherokee district court; J. D. MCCUE judge. Action by George Brown against The St. Louis & San Francisco Railway Company to recover damages for loss of property by fire. Judgment for plaintiff. Defendant brings the case to this court. Reversed. The opinion herein, filed May 8, 1896, states the material facts.

Judgment reversed and case remanded.

A. A Hurd, O. J. Wood, and W. Littlefield, for plaintiff in error.

A. H. Skidmore, and E. M. Tracewell, for defendant in error.

DENNISON J. All the Judges concurring.

OPINION

DENNISON, J.:

This action was brought before a justice of the peace in Cherokee county, to recover damages for the loss of certain property claimed to have been destroyed by a fire occasioned by the negligence of defendant railway company. A judgment was rendered in justice's court against the company, and it appealed to the district court of said Cherokee county. The case was tried in the district court upon the original bill of particulars, with a jury, and a verdict and judgment were rendered in favor of the plaintiff, Brown, against said railway company. The company excepted, and brings the case here for review.

The first error complained of is in overruling the motion to require the plaintiff to make his bill of particulars more definite and certain. The motion asked that the plaintiff be required to set out the number of the train which set out the fire, the number of the engine, which way it was running, who was the owner of the land upon which the damage was done, the condition of the grain destroyed, and the number of acres from which it was harvested. The motion was overruled by the judge for the reason that it was not filed in time. The record fails to show how the company was prejudiced by this ruling. It had witnesses at the trial to show the condition of the engine and all the facts about the train which it is claimed set out the fire, and it had the condition of the property examined after the loss by its employees. It evidently knew as much about the cause and origin of the fire and the condition of the property destroyed as the plaintiff did. It is immaterial what reason the court may have given for overruling the motion. If the company was not prejudiced thereby, no reversible error was committed.

The company also contends that the verdict and special findings of the jury are not sustained by and are contrary to the evidence. Lashly and Titus testified that they were plowing in a field on the south side of the railroad track, some distance from the pasture where the fire was afterward discovered; that they saw a train pass, and, 5 or 10 minutes afterward, saw the fire burning in the pasture of the plaintiff, Brown, north of the railroad track. Lashly testified that he had run an engine, and that from the way the engine sounded, as it was passing Brown's place, the engineer was shutting off steam and then throwing it on again, backward and forth, and that that has the effect to throw out cinders, because when the exhaust comes it gives it more draft. This is circumstantial evidence, tending to show that the engine set out the fire, and that the...