Tilley v. St. Louis & S. F. Ry. Co.

• Decision Date: 19 November 1887
• Citation: 6 S.W. 8
• Parties: TILLEY <I>v.</I> ST. LOUIS & S. F. RY. CO.
• Court: Arkansas Supreme Court

6 S.W. 8

TILLEYv.

ST. LOUIS & S. F. RY. CO.

Supreme Court of Arkansas.

November 19, 1887.

Appeal from circuit court, Sebastian county; R. B. RUTHERFORD, Judge.

Clendenning & Read and F. A. Youmans, for appellant. W. H. H. Clayton, for appellee.

SMITH, J.

This was an action for damages against the railway company for burning the plaintiff's grass and peas. The complaint alleged that the defendant had negligently suffered its right of way to grow up with weeds and grass; that one of its engines had emitted sparks, coals of fire, and cinders, which had set fire to the weeds and grass along the right of way, and the fire had spread to the adjoining land of the plaintiff and consumed his crop. The answer denied specifically all the allegations of the complaint. A trial was had, resulting in a verdict for the defendant. The plaintiff asked for a new trial for misdirection of the jury, but his application was refused.

The defendant's road ran through the plaintiff's farm, and its right of way was 100 feet in width. Immediately after the passage of a train, the fire was discovered on or near the road-bed, and it was thence communicated to the plaintiff's field, and destroyed a portion of his crop. There was also testimony conducing to show that some tramps had recently before walked along the track, and that one of them had a lighted pipe. The two laborers on the plaintiff's farm, who had first noticed the fire, made no efforts to suppress it; neither did the manager of the farm, who was a few hundred yards distant, and to whom information was given. The excuse was that the fire had already acquired considerable headway, a stiff wind blowing from the direction of the railway track towards the field, and any attempt by them to stop the progress of the fire would have been fruitless. As to the presence of combustible material on and about the road-bed, the testimony was conflicting. The plaintiff adduced evidence tending to show that dry grass and weeds had been permitted to accumulate on the road-bed and right of way, and that, at a distance of 10 or 12 feet from the road-bed, the grass was rank; while the defendant's evidence was to the effect that its road-bed was kept clean and free from grass and weeds between the rails, and for two feet on either side of the track, and that outside of those limits the grass which grew upon its right of way was thin and short wire-grass. It was also shown that the particular engine which was supposed to have scattered the fire was in excellent repair, prudently managed by skillful men, and supplied with the best-known appliances in general use for the prevention of the escape of fire. But it was claimed to be impossible to construct an engine which would not emit sparks.

The following directions were given to the jury, at the instance of the defendant, over the plaintiff's objection: (2) In this case, plaintiff must show, by a preponderance of the evidence,—First, that the grass and peas, etc., were burned by fire and sparks originating from the locomotive of the defendant; second, after having established that fact, the burden is still further on the plaintiff to show, by a preponderance of evidence, that such sparks were permitted to escape from the locomotive by the carelessness and negligence of the defendant or its employes. (4) The fact that fire was discovered on plaintiff's farm in a field upon the line of defendant's road, or upon the right of way of defendant's railway, shortly after the passage of a train or locomotive, is not of itself evidence of negligence on the part of the railway company. (6) If the jury find from the evidence that Guthrie, plaintiff's agent, had notice or knowledge that the property of plaintiff had been set on fire, and did not use any exertion to put it out, nor attempt to do so, plaintiff cannot recover for any damage occasioned after that time.

The court denied the following prayer of the plaintiff: "The court instructs the jury that, in determining the question of negligence on the part of defendant, they should take into consideration the condition in which defendant's road-bed and right of way was kept at the place where said fire is alleged to have occurred. And if they find from the evidence that said defendant had permitted said road-bed and right of way to grow up with grass and weeds in such a manner as would make it liable to be set on fire by sparks, cinders, or coals escaping from passing engines, and to communicate thence to plaintiff's property adjoining said right of way, and if they find from the evidence that the said grass and weeds on said right of way were set on fire by sparks, cinders, or coals escaping from said engine, and that said fire did communicate to plaintiff's property adjoining, and did destroy any part of the crops growing thereon, or injure the soil of plaintiff's land, then they shall find for plaintiff,"—and in lieu thereof charged the law to be as follows: "The railroad company is not bound, as a matter of law, to cut grass or weeds on either side of its road, but if such company should permit such rank vegetation to grow upon its right of way which, in a dry state, would be liable to be easily ignited by sparks from passing engines, and thus communicate fire to adjacent property whereby the same was consumed, it is a circumstance that the jury may consider, with all the other evidence, in determining whether or not there was negligence on the part of the company."

A railway company, having the legal right to propel its cars by steam, is not liable for fires communicated by its engines, unless it has been negligent in their construction or management. Vaughan v. Railway Co., 5...