Union Pacific Railway Co. v. Keller

• Decision Date: 01 February 1893
• Docket Number: 4412
• Citation: 54 N.W. 420,36 Neb. 189
• Parties: UNION PACIFIC RAILWAY COMPANY v. EMIL KELLER
• Court: Nebraska Supreme Court

54 N.W. 420

36 Neb. 189

UNION PACIFIC RAILWAY COMPANY v. EMIL KELLER

No. 4412

Supreme Court of Nebraska

February 1, 1893

ERROR from the district court of Buffalo county. Tried below before CHURCH, J.

AFFIRMED.

J. M Thurston, W. R. Kelly, and E. P. Smith, for plaintiff in error.

Gillespie & Murphy, contra.

OPINION

MAXWELL, CH. J.

This is an action to recover damages for the destruction by fire of a granary and about 1,200 bushels of oats on the plaintiff in error's right of way at Kearney. On the trial of the cause in the court below a verdict was returned for the sum of $ 300, upon which judgment was rendered. The plaintiff below in his petition alleges, in substance, "that on or about the 29th day of September, 1888, the plaintiff was the owner of a certain granary containing about 1,200 bushels of oats, situated on the defendant's right of way in the city of Kearney, Nebraska, 'by and with the consent and permission of said defendant'; that on or about the 29th day of September defendant, by its servants, etc., in operating and running its engines over said line of road at or near said granary * * * negligently and carelessly permitted an engine to cast out sparks and coals of fire therefrom, which set on fire combustible material situated on defendant's right of way; that said fire spread onto and over the granary of said plaintiff, and totally destroyed the same without any fault or negligence on the part of the plaintiff. That the granary was worth the sum of $ 75; that it contained 1,200 bushels of oats, whose market value at the time of the fire in the city of Kearney was twenty-five cents per bushel. Judgment prayed for $ 375, with interest at the rate of seven per cent per annum from the 29th day of September, 1888, with costs."

In its answer the railway company denies that Keller was the owner of the granary destroyed; denies that he built the same on the company's right of way with the consent of the company; denies that it negligently and carelessly permitted one of its locomotives to cast out sparks and coals of fire or permitted its engines to set out fire; denies that the plaintiff's building was of the value of $ 75, or that it contained 1,200 bushels of oats, and denies the damages, etc. It also alleges that the plaintiff's granary was erected on that portion of the right of way held by the Bogue & Sherwood Company under a written lease which exempted the company from liability for loss by fire, etc.

The reply is a general denial.

The testimony tends to show that one David Bohrer, erected the building in question, to store grain in to ship over the railway. The building was erected with the understanding that it should be moved off the right of way whenever the company demanded. Bohrer does not seem to have shipped any grain, but sold the building to Keller who seems to have had a large quantity of oats therein for shipment. The testimony also shows that before the fire the company had leased the ground on which the building stood, with other ground, to Bogue & Sherwood Company; that that company had erected coal sheds on a part of the ground so leased but did not need the ground on which the granary stood, and therefore consented to permit the building to remain for a time. So far as we can see Bogue & Sherwood Company's lease does not enter into the case. There is testimony in the record tending to show that engine No. 805 passed through Kearney shortly before the fire, going west; that this engine set out fire at five different places along the railroad a short distance east of Kearney. There is also testimony from which the jury would be justified in finding that the engine in question set out the fire. Certain witnesses were called to prove that the engine in question was in good repair and had modern appliances to prevent the escape of fire. The scope of this testimony may be inferred from that of W. S. Dolson. He testified in regard to the fire as follows:

Q. Do you know how long before that there was any engine in the yard?

A. I cannot say positively; I know there had not been any in the yard for two hours.

Q. State what locomotive you were handling that day.

A. Eight hundred and five.

Q. How long have you been acting in the capacity of fireman and locomotive engineer?

A. About nine years.

Q. State your experience in handling engines.

A. I have served about three years running one, and over six firing.

Q. State what are the most approved appliances, if any, used to prevent the escape of fire from a locomotive.

A. They have kind of a reflecting plate and a fine netting.

Q. State, if at the time you were handling this engine on this day, your engine was properly provided with a reflecting plate.

A. Yes, sir; and a proper netting also.

Q. State if you examined it.

A. No, sir; I did not examine it myself; the engines are overhauled every trip.

Q. State if your engine was throwing any fire during this trip.

A. She was throwing no fire to speak of that I could see.

Q. State if she was throwing fire while you were running through the yard.

A. We were not working any steam to amount to anything, and in working no steam an engine will not throw any fire.

Q. Explain how it is that in working no steam an engine will not throw any fire.

A. In working steam the exhaust draws the fire through the flues out of the stack, but if she is shut off there is no exhaust and we cannot throw any.

Q. You were running in the yards without working steam?

A. Yes, sir; I pulled off with a few cars and then backed down; there was only two or three cars and they would not work the engine hard enough to throw fire.

He also states that on the straight smoke-stacks they do not use spark arresters, some other device being substituted.

The court instructed the jury as follows:

"1. To warrant the jury in finding for the plaintiff you must first determine from the evidence whether the fire which occasioned the damage complained of originated from the engine of defendant as averred in plaintiff's petition and in addition thereto you must find that the fire originated from the negligence of defendant's servants by means of their carelessness, or by means of defective engines or machinery, and the plaintiff did not directly, by his own negligence, contribute toward the destruction of the house and oats sued for herein.

"2. If the evidence fails to satisfy you that the fire which caused the injury originated from the defendant's engine you will inquire no further, and at once render a verdict for the defendant, and you will bear in mind that it is incumbent upon the plaintiff by a preponderance of evidence to satisfy you that the fire which did the injury originated from the defendant's engine.

"3. If you are satisfied that the fire did originate from the engine as claimed, then the burden is upon the defendant to remove a presumption, though small, indeed, of negligence; to show you that the engine of the defendant from which the fire escaped was in good order, properly constructed, and provided with the usual appliances and spark arrester to prevent the escape of fire, and if you so find, then it is your duty to find for the defendant, as the defendant would not be liable if they used the most approved appliances, engine, and machinery, and it was carefully handled and managed by the servants of the defendant, unless the jury believe the defendant or its employes were guilty of actual negligence.

"4. Though the jury believe from the evidence that the engine of defendant were supplied with a 'spark arrester' and other contrivances to prevent the escape of fire from the engine of the most approved style and pattern, yet if the jury believe from the evidence that the employes or servants of defendant operating its locomotives at the time of the fire mentioned in the petition failed or neglected to exercise due care and caution in so operating and running said locomotive, and that for want of such due care and caution the said fire was communicated by said locomotive or engines to the house of plaintiff described in the petition, then they will find for the plaintiff.

"5. If you find the fire which occasioned the damage complained of originated from defendant's engine by the carelessness of defendant's servants having same in charge, or from a defective engine and one without latest appliances to prevent escape and spread of fire, and you further find the negligence of the plaintiff did not contribute toward the damage, you will find for the plaintiff, and assess his damages at such sum as you think the evidence shows the house and oats were damaged.

"6. If you find from the evidence that defendant permitted plaintiff to keep the house on the right of way, conditioned that plaintiff should remove the same...