Woulfe v. The Arkansas Valley Interurban Railway Company

• Decision Date: 08 March 1924
• Docket Number: 25,108
• Citation: 115 Kan. 640,223 P. 817
• Parties: VERTIE J. WOULFE et al., Appellants, v. THE ARKANSAS VALLEY INTERURBAN RAILWAY COMPANY, Appellee
• Court: Kansas Supreme Court

223 P. 817

115 Kan. 640

VERTIE J. WOULFE et al., Appellants, v. THE ARKANSAS VALLEY INTERURBAN RAILWAY COMPANY, Appellee

No. 25,108

Supreme Court of Kansas

March 8, 1924

Decided January, 1924.

Appeal from Harvey district court; WILLIAM G. FAIRCHILD, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. DAMAGES--Fire--No Negligence Shown. In an action for damages caused by fire, in which it is alleged that defendant was negligent, after it discovered the fire on its premises, in not using due care in controlling the fire, in consequence of which it spread to the premises of plaintiff, the record is examined and held, that no negligence on the part of defendant is shown.

2. SAME--Jurors No Right to Disregard the Only Material Evidence. Jurors have no right to disregard the only evidence upon a material question in controversy and to return a verdict in direct opposition thereto.

B. H Turner, and J. G. Somers, both of Newton, for the appellants.

Chester I. Long, J. D. Houston, Austin M. Cowan, Claude I. Depew, James G. Norton, and W. E. Stanley, all of Wichita, for the appellee.

OPINION

HARVEY, J.:

This is an action for damages caused by a fire. It was tried to a jury, which returned answers to special questions, and a general verdict for plaintiff. The court sustained defendant's motion for judgment upon the evidence and special findings, notwithstanding the general verdict, and the plaintiff has appealed.

The plaintiff owns and lives upon a 160 acre farm near the southwest limits of Newton. The residence is near the north line of the farm, about midway east and west. The interurban railroad line passes through the farm, entering it on the north line, about 80 rods from the northeast corner, runs directly south a little more than a quarter of a mile, circles around a creek, where there is a station known as Sand Creek Station, and then runs directly west. The railroad is operated by electricity--no steam or gas engine is used--and the right of way is 80 feet wide and fenced on both sides. The farm was well fenced, there were cross fences dividing the forty acre tracts, and there were fenced stock yards and corrals. Part of the fence was of woven hog wire, with two or more barbed wires above, and part of it three or four wire fence, and was all kept in good condition. At the time in question a part of the land near the right of way was in oats, part in wheat; there was some alfalfa and some native meadow. The wheat and oats had been cut and were in the shock.

Soon after noon, August 12, 1919, the plaintiff from her house noticed smoke near the railroad line on the southeast forty of her land. She went up stairs, where she could get a better view from the window, and could see the fire on defendant's right of way, east of the track, about three trolley poles (they were 140 feet apart) south of the fence dividing the northeast and southeast forties. She could see some men standing watching the fire and others throwing dirt on it with shovels. She went downstairs and about her work. In fifteen or twenty minutes she looked again. The fire was burning further south, still in defendant's right of way east and south of the track; some men were throwing dirt on the fire with shovels. There was a strong wind from the south, or southwest. Soon she noticed more smoke and saw that the fire was across the track on the north or west side. She sent her daughter for a threshing crew, a half mile away, to come to help. She and another daughter went to help. There was fire along the fence between the southeast and southwest forties and at other places north and west of defendant's right of way. The fire burned most of plaintiff's oats, some of her wheat, alfalfa, and prairie hay, and destroyed or damaged much of her fence before it was put out.

There is no evidence as to how the fire originated. Defendant's section foreman, when he put his men to work after noon that day, had some of them working on the ballast on the track and went south and west with two of them to start them trimming hedge. He was not burning the right of way, did not instruct any of his men to do so, and there is no evidence that any of defendant's employees started the fire, or had any fire for cooking or any other purpose. The foreman testified that when he came back toward the men working on the track, about 100 feet from where they were working, he saw the fire, burning in the grass on the right of way. It had then burned a patch about fifteen feet across. He called his men and he and they went to fighting the fire. The Santa Fe railroad is near there on the east. The section men from the Santa Fe came over and helped. The wind was so strong...