Missouri, Kansas & Texas Railway Co. v. Fithian

85 P. 594, 73 Kan. 784, 1906 Kan. LEXIS 334

• Court: Supreme Court of Kansas
• Decided: May 12, 1906
• Docket: No. 14,587
• Status: Published

Opinion

Per Curiam:

An ice-house was burned through the negligence of the employees of the railway company, who were burning and clearing the right of way. It was not an accidental fire, but was purposely set out under orders of a foreman and to carry out the company’s scheme of clearing the right of way and protecting it against loss. The fire was set out just beyond the right of way and within a few feet of the ice-house, but the company cannot escape liability on that account. Because of the direction of the wind the men thought it to be more practicable to burn from the outside toward the railroad-track, instead of from the track outward, but it proved to be a careless and disastrous plan. The fire was started near the right of way by employees of the company, under orders of its representative, and for its own benefit. For their negligence the company is responsible.

The question of contributory negligence was properly submitted to and settled by the jury. We find no error in the instructions, or other rulings, and therefore the judgment is affirmed.