The Union Pacific Railway Company v. Lipprand

• Decision Date: 04 January 1897
• Docket Number: 72
• Citation: 5 Kan.App. 484,47 P. 625
• Parties: THE UNION PACIFIC RAILWAY COMPANY v. RICHARD LIPPRAND
• Court: Kansas Court of Appeals

47 P. 625

5 Kan.App. 484

THE UNION PACIFIC RAILWAY COMPANY v. RICHARD LIPPRAND

No. 72

Court of Appeals of Kansas, Northern Department, Western Division

January 4, 1897

January 4, 1897.

Error from Russell District Court. Hon. W. G. Eastland, Judge. Reversed.

Judgment reversed and cause remanded.

A. L Williams, N. H. Loomis, and R. W. Blair, for plaintiff in error.

Geo. W Holland, and William B. Sutton, for defendant in error.

OPINION

GILKESON, P. J.

The defendant in error, Richard Lipprand, brought this action as plaintiff to recover damages sustained by him from a fire alleged to have been negligently set out by the defendant, plaintiff in error. The allegations of negligence in the petition are as follows:

"On the twelfth day of March, 1893, the said defendant, while running one of its trains on its road in Russell County, managed its train carelessly and negligently, and failed to employ suitable means to prevent the escape of fire from the engine that was used in running the train--the same being a freight train going west-- on or about the afternoon of the date aforesaid. And the defendant carelessly and negligently permitted dead and dry grass and other combustible material to collect and remain on the right of way and land of said defendant, and also allowed dead and dry grass and other combustible material to remain and collect near the track of the road of the said defendant, so that, by reason of the carelessness and negligence hereinbefore set forth, fire escaped from the engine of said Company used in running the train aforesaid, and set fire to the dry and dead grass and other combustible material on the right of way and other lands of the said Company; and, by means of a continuous body of dry grass and other combustible material, the fire was communicated, without any fault of the plaintiff, to the premises of the plaintiff, and then and there burned and destroyed," etc., etc.

On the trial the jury returned twenty-nine special findings. Those as to the condition of the engine, the escape of the fire, and the management of the train, were as follows:

1. "Was not Frank Schuyler the engineer in charge of engine 712, attached to train No. 11, on March 12, 1893? A. Yes.

2. "Was not Chas. Petrie the fireman on that train? A. Yes.

3. "Was not Mr. Schuyler a careful and competent engineer? A. Yes.

4. "Was not Mr. Petrie a careful and competent fireman? A. Yes.

5. "Were not Mr. Schuyler and Mr. Petrie both performing their respective duties properly when the train passed between mile-posts 250 and 251? A. For the want of sufficient evidence we can't say."

7. "Did the fire which damaged plaintiff's property start from an engine belonging to defendant? A. Yes.

8. "If you answer the last question in the affirmative then state the number of the engine from which the fire started? A. 712.

9. "Was not engine 712 furnished with well-known, improved and reasonably safe appliances to prevent the escape of fire or sparks? A. Yes.

10. "Were not all of said appliances in good order and proper position on March 12, 1893? A. For want of sufficient evidence we can't say.

10 1/2. "Is it possible to construct and equip a locomotive so as to entirely prevent the escape of sparks and fire and furnish draft sufficient for the engine to do its work when it is carefully and properly operated? A. No."

12. "Was it not found by the inspector at such time to be in good and safe condition? A. Yes."

They also found in reference to the wind, and where the fire started, and the fire-guard of the defendant, as follows:

13. "Was there not an unusually high wind blowing from the south or southwest at the time the fire started? A. No.

14. "Did not the fire start about 140 feet north of the track and between mile-posts 250 and 251? A. Yes.

15. "Had not the defendant burned a strip about 140 feet wide for a fire-guard along the north side of the track between mile-posts 250 and 251, and along the south side of the Smith stubble field, prior to March 12, 1893? A. Yes.

16. "Did not the fire start on the north side of the fire-guard? A. Yes.

17. "Would not such a fire-guard as defendant had on the north side of its track be sufficient, under usual and ordinary circumstances, to prevent fire being communicated from passing engines to combustible material on the outside of the fire-guard? A. No.

18. "Was not the land where the fire started in cultivation? A. Yes.

19. "Had not the land where the fire started been under cultivation since 1880 or 1881? and if it had not been, state for how many years it had been under cultivation. A. It was, but not continuously.

20. "Had not Chas. Smith plowed two furrows along the south side of the Smith stubble field at the time the fire-guard had been burned by the section foreman? A. Yes.

21. "Had the defendant been in possession of or exercised any control over, the land included in the Smith stubble field, since said field had been in cultivation? A. Yes."

They also found as to the condition of the buildings:

22. "Had the buildings, which the plaintiff claims were destroyed by fire, been unoccupied since the spring of 1892? and if not for that length of time, state how long they had been vacant. A. Yes."

The petition does not allege generally that the injuries complained of were committed by the defendant "in the operation of its railroad." Its allegations are limited to those of the negligence of the defendant in managing the train, by failure to employ suitable means to prevent the escape of fire from the engine, or in permitting dead and dry grass and other combustible material to remain near its track, on its right of way and on its land. It is true that there is an allegation in the petition that "by means of a continuous body of dry grass and other combustible material the fire was communicated, without any fault of the plaintiff, to the premises of the plaintiff;" but this does not help the plaintiff, for the defendant is not charged with any fault in permitting the existence of the grass and material. U. P. Rly Co. v. Mills , just decided, and authorities there cited.

We concede--with serious doubt--that the petition is sufficient to authorize a recovery on proof of negligently permitting the accumulation of combustible material on the right of way; but do not the special findings and evidence in this case defeat the plaintiff's claims? Whether negligence in a particular case is shown, is, ordinarily, a question for the jury; but when the facts are undisputed or are definitely found by the jury, and only one conclusion can be drawn therefrom, it becomes a question for the court. K. P. Rly. Co. v. Pointer, 14 Kan. 37; Dewald v. K. C. F. S. & G. Rld. Co., 44 id. 586; U. P. Rly. Co. v. Buck, 3 Kan.App. 671, 674.

There is nothing in the pleadings or the evidence to indicate whether the fire was purely accidental or was caused by the negligence of the defendants, either in the management of the train, want of suitable means to prevent the escape of fire, or use of a defective engine or appliances. The jury found that the fire started from an engine--No. 712--belonging to the defendant; but why or how the fire escaped they fail to state, and there is not a particle of testimony to show. The jury found, and the evidence is uncontradicted, that the engineer and fireman were careful and competent, and were doing their duty properly when the train passed the point where the fire originated. It is true, the jury say, for want of testimony upon this point, they were unable to state whether the engineer and firemen were doing their duty; but this answer is unwarranted. There was testimony upon this point and it was uncontradicted. The testimony shows that engine No. 712 was furnished with the most...