Chicago, Rock Island & Pacific Railway Co. v. McBride

54 Kan. 172

• Court: Supreme Court of Kansas
• Decided: July 15, 1894
• Status: Published

Opinion

The opinion of the court was delivered by

Horton, C. J.:

It is insisted that the trial court erred in granting the motion of plaintiff below to amend her petition to conform to the verdict and special findings of the jury. This involves also the question whether the court erred in admitting evidence to prove that the locomotive engine was defective, and the condition of the right-of-way; and further, concerns the rulings upon the special findings of the jury, and the instructions given and refused. The argument is, that the trial court permitted negligence to be proved upon issues not made by the pleadings, which the railway company was unprepared to meet. If this were true, prejudicial error would exist. The petition reads as follows:

"... Said defendant, its agents, servants, and employes, in the operation of and in the running of its trains on its said railway, negligently and carelessly permitted its locomotive to emit sparks and fire into the dry grass and weeds along the right-of-way, and the land adjoining thereto, at or near the town of Mullinville, in said Kiowa county, which said sparks and fire ignited and set fire to the prairie grass and weeds along said right-of-way and the adjoining lands; which said fire, so started as aforesaid, spread and burned continuously to and over plaintiff’s premises above described.”

3. prffnl™cieevidence. The trial court, in its construction of the petition, ruled that “ the allegations in the operation of [ its said railway ] ” and “in the running of its trains on its said railway” covered more than the mere “act of running the train,” and, therefore, that it was competent for the plaintiff below to show that engine No. 178, on train No. 23, going west through Mullinville, from Pratt to Liberal, in the forenoon of February 4, 1889, was defective, and that dry grass and other combustible material were permitted to accumulate on the right-of-way. The plaintiff below offered evidence to establish the fact that the fire complained of was caused by the operation of the railroad, and the amount of her damages; that is, made a prima fade case under chapter 155, Laws of 1885. The railway company offered » A . evidence tending to show that the engineer of train No. 23 was not careless or negligent; that the engine and train were managed in a skillful and proper manner, and also that engine No. 178 was not defective, but in a good eontion, and that the right-of-way had been recently burned off, and was free from dried grass or weeds. The plaintiff below, in rebuttal, was permitted to show that the right-of-way had not been burned off recently, and that dry grass and weeds had accumulated thereon.

2. pany-dam-11' ||elre-sea

1. amendment to meet proof,

6. supported! The railroad company offered evidence upon all the issues of the petition, as construed by the trial court, and that included the issue whether the fire was “caused by the operating of the railroad.” (Railway Co. v. Merrill, 40 Kas. 404; Railway Co. v. Cady, 44 id. 633.) No motion at any time was made for a continuance of the cause, and it cannot be said that there is anything in the reeord tending to show the railroad company was misled or surprised by the issues actually tried. If the trial court had ruled that the only*negligence charged in the petition was “in the operation and running of its train,” the railroad company would have had good pause of complaint that other issues were proved than those alleged; but the construction given by the trial court to the petition, and the evidence received upon the trial for and against its allegations, show that the issues concerning the engine and .the right-of-way were fully and fairly tried. Under the construction given to the petition, the amendments after the verdict were unnecessary, and added ^ * nothing to the strength of plaintiff's case. At most, the permission to amend was a mere irregularity. Under the petition, the general verdiet, and the special findings of the jury that the fire was not caused by accident, the judgment has support, and the court committed no error in receiving the evidence objected to.

It is next insisted that the burden of proof was cast on the company concerning the combustible material which it was alleged was upon the right-of-way. It appears from the evidence that on the 4th of February, 1889, the train of the railway company, going west, passed through Mullinville about 10 o’clock in the forenoon, and about a mile and a half after the train left the depot, a fire sprung up along the railway, on the south, and went in a southeastern direction as far as the Cimarron, in the Indian Territory. W. B. Burnett, who was at the Rock Island depot at Mullinville with the mail on the 4th of February, at the time the train left for the west, testified he was employed by the railway company to fight the fire, and that he followed it about 12 miles south.

4- OTitaSSl proof!11 of The petition alleged that the sparks and fire thrown from the engine “ignited and set fire to the prairie grass and weeds along the right-of-way and the adjoining lands.” The lands or ranch of the plaintiff below consisted of over a thousand acres, a part of which were burnt over, and are situate 10 miles or more south of Mullinville. The right-of-way, where it is alleged there was a large accumulation of dry grass and weeds, was under the direction and care of the employés of the railway company. The caring of the right-of-way is within the control of the company, and the plaintiff below, whose property was consumed by fire, had less opportunity in this case to learn the true condition of the right-of-way than others. It is true that the right-of-way was open to public inspection, the same as the land or fields of other persons, but the presumption of negligence concerning the caring for the right-of-way arising from the statute, if any, does not seem to have affected the verdict, because there was evidence from both plaintiff and defendant upon the condition of the right-of-way before the fire, and the jury specially found that the railway company failed to “exercise such care and caution that a man of ordinary prudence would have exercised under similar circumstances in not burning off the right-of-way.” They also specially found as follows: “Q,. State what the defendant’s servants did or omitted to do constituting the negligence of the defendant. A. By not having the right-of-way burned off.” Therefore it is unnecessary in this case, on account of the facts found, to discuss the question whether, under the statute, the presumption of negligence applies only to defects in the engine and negligence of employés in operating it. But see Railway Co. v. Merrill, 40 Kas. 404; Railway Co. v. Cady, 44 id. 633; Railroad Co. v. Westover, 4 Neb. 269.

It is next insisted that the findings of the jury that the engine was defective and that the fire caught within the right-of-way are wholly unsupported by any evidence. There was very much evidence offered tending to show that the engine was well equipped with all the latest modern improvements for arresting sparks, that they were all in good repair, and that it is not possible to entirely prevent the escape of sparks from an engine, and also that the fire started from 110 to 120 feet from the track. While possibly the conclusion of the trial court may not have been the same we would have arrived at from the evidence as disclosed in the record, yet it cannot be said, we think, that the findings are without support. Mr. Euntz, who lived near the railroad, had frequently seen the engine set other fires previously. Wallace Burnett saw the engine throw sparks and fire about a week previous to the fire complained of. It was proved that the engine had caused another fire on the same day a few miles east of the fire complained of. James B. Forbes testified that he had been a locomotive engineer for four years, and that he was acquainted with the construction and different parts of a locomotive or engine. He also testified:

“ Q,. You may tell the jury whether an engine properly equipped with the most approved appliances will throw sparks sufficient to ignite combustible material along the track. A. Not when I run. I do n’t think I ever set fire to anything, either with diamond stack or straight shot.

“Q. If an engine is in proper condition and properly handled, and if the netting is perfect, the smokestack in good condition, will such an engine throw sparks sufficient to ignite combustible material ? A. I never knew them to.

“Q. Then, if an engine should throw sparks any great distance, and these sparks were of sufficient size to live and ignite combustible material, would n’t you say the engine was either out of repair or that it was mismanaged in some way? A. I should say that it was out of repair.”

Several witnesses called for the plaintiff below testified that the fire started within the right-of-way. Two witnesses testified that it started within 10 to 15 feet of the track. J. B. Kuntz testified that it started about 40 feet from the track; that he went down to the track for the purpose of seeing whether it had caught on the right-of-way; that he stepped the distance from the burned ground to the track. J. H. Sanders testified he saw the fire burn a part of the McBride ranch on the 4th of February; that he was coming over the north of the ranch which the' fire had burned; that he followed the fire back to the railroad; that the fire had burned from south of the Rock Island railroad. (Railroad Co. v. Stanford, 12 Kas. 370; Railroad Co. v. Bales, 16 id. 252.)

The jury also found, in answer to special interrogatories, as follows:

“Q,ues. 12. Is it probable that this plaintiff’s property would have been destroyed, had it not been for the unusual high wind prevailing at the time? Ans. No; it is not probable, but it is possible.

“Q. 13. If an ordinary wind had been blowing on the day plaintiff’s property is alleged to have been burned, is it probable that it would have been destroyed? A. No, it is not probable, but possible.”

As a high wind was blowing at the time the train passed through Mullinville west, it is urged that the injury complained of was too remote. It is said that the “result was a mere possibility.” The wind was blowing at the time the fire was set, the flames spread rapidly from the place where it started over the prairie until it reached the property destroyed, yet it burned without intermission. The plaintiff’s property would not have been destroyed except for the fire which the railway company permitted to escape. Under the findings of the jury, the railway company was negligent in permitting the fire to escape, and the company, by the exercise of reasonable diligence before the fire, knowing that the weather was very dry and windy, could have anticipated that sparks escaping from an engine would have set fire to the dry grass and weeds along the right-of-way and adjoining lands, and that the grass and weeds thus set on fire would likely burn without intermission over the prairie to a great distance. In the Stanford case, 12 Kas. 354, the wind was very strong, and the fire from the engine did not fall upon the plaintiff’s property, but spread and finally reached his property, about four miles distant from the railroad track, and there did the damage for which the recovery was allowed. In that case, (pi 377,) Valentine, J., speaking for the court, observed:

“A wrongdoer is not merely responsible for the first result of his wrongful act, but he is also responsible for every succeeding injúrious result which could have been foreseen, by the exercise of reasonable diligence, as the reasonable, natural and probable consequence of his wrongful act. He is responsible for any number of injurious results consecutively produced by impulsion, one upon another, and constituting distinct and separate events, provided they all necessarily follow from the first wrongful cause. Any number of causes and effects may intervene between the first wrongful cause and the final injurious consequence; and if they are such as might, with reasonable diligence, have been foreseen, the last result, as well as the first, and every intermediate result, is to be considered in law as the proximate result of the first wrongful cause.”

In Huyett v. Railroad Co., 23 Pa. St. 373, the weather was very dry and windy, and the sparks flew from the engine to a great distance, setting fire to several fields and fences near the same time and place, and it was left for the jury to decide whether there was sufficient evidence of carelessness. In Kellogg v. Railroad Co., 26 Wis. 223, the fire was set out in a drought and high wind. In that case the damages were held not to be remote, and the verdict was permitted to stand. In this case, at the time of the fire a high wind was prevailing, but there was no “perfect gale,-no hurricane, no cyclone.” The wind did not arise suddenly after the sparks set the grass and weeds on fire.

“In the present case there was but one burning, one continuous conflagration, from the time the (fire was set on the railroad until the plaintiff’s property was destroyed. The combustible material extended, and the ground was burned over, all the way from the railroad to the plaintiffs property; and the fire, driven by the wind, was carried to his property in that manner. There was no distinct or separate setting fire to or burning of the stacks or buildings, and then a communication of the fire by sparks through the air from one stack or building to another. There was no succession of events, but only one event.” (Kellogg v. Railway Co., supra.)

It cannot be said that the blowing of the wind at the time of the fire must be regarded as extraordinary. In Kuhn v. Jewett, 33 N. J. Eq. 647, it appeared that a railway train laden with petroleum was wrecked through the negligence of the defendant, and the oil escaping took fire, ran down into a stream of water, and was borne down in a blaze against the plaintiff’s stable some distance below, in consequence of which the stable was destroyed. The defendant was held liable, and the vice chancellor said:

“There can be no doubt, I think, if in this instance the flames of the burning oil had been carried by the wind directly from the point of collision to the petitioner’s building, and it had thus been set on fire and destroyed, that the injury would, in judgment of law, have been the natural and direct or proximate result of the collision. So, too, if the burning oil had descended from the point where it was first ignited by the mere force of its own gravity upon the petitioner’s building and destroyed it, the connection between cause and effect would have been so close and direct that the defendant’s liability could not have been successfully questioned. So, also, if the fire had been carried from the place of its origin to the petitioner’s building by a train of combustible matter deposited in its track by the operation of the laws of nature, the petitioner’s injury, I think, it could not have been doubted, would have been esteemed the direct result of the defendant’s negligence. These principles must rule this case. Their application is obvious, for, although water is almost universally used as a means to extinguish fire, and it seems, at first blush, absurd to say that it can be used for the purpose of extending it, yet it is true, as a matter of fact, that as an agency for the transmission of burning oil, it is just as certain and effectual in its operation as the wind in carrying flame, or a spark, or combustible matter, in spreading a fire. In keeping up the continuity between cause and effect, it may be just as certain and effectual in its operation ai any other material force.”

5. case, followed, If it had not been for the high wind prevailing, the jury found that it was not probable that plaintiff’s property would have been destroyed; that is, that it is not probable the fire, if not driven by the wind, would have spread so far. But, within the Stanford case, “the last result,” the burning of the plaintiff’s property, is to be considered “as a proximate result of the first wrongful cause.” In the Kuhn case, the flames of the burning oil were carried by water. It was insisted by the defendant in that case that this result could not have been foreseen, yet the injury was held to have been the proximate result of the collision wrecking the railway train and causing the oil escaping to take fire, although after taking fire the burning oil was carried to the property which it destroyed by a stream of water.

It is unnecessary to make further comments upon the alleged errors as presented. The judgment will be affirmed.

All the Justices concurring.