207 Ky. 379 | Ky. Ct. App. | 1925
Opinion of the Court by
Affirming.
Alleging that they were the owners- of a tract of land adjoining the right of way of the Chicago, St. Louis and New Orleans Railroad Company, which was leased and operated by the Illinois Central Railroad Company, and that the timber thereon was destroyed by a fire caused by the negligence of the defendants, their agents and servants, plaintiffs, Lee Akers and others, brought this suit against the railroad companies to recover damages in the sum of $13,750.00. From a verdict and judgment in favor of the defendants, plaintiffs have appealed.
The grounds of negligence were: (1) permitting combustible material to accumulate on the right of way; (2) failure to equip the engine with a proper spark arrester and keep same in good order; (3) negligent operation of the engine.
There was a conflict in the evidence as to the origin -of the fire, the witnesses for appellants testifying that the fire began on. the right of way and -spread to the land in question, while the witnesses for appellees testified that the fire originated on the land itself, traveled towards the right of way, and had not reached the right of way when discovered by them.
The only issue submitted to the jury was whether the railroad companies permitted combustible material to accumulate along the' right of way and whether such material was set on fire by sparks from its locomotives.
The principal ground urged for reversal is, that the court improperly excluded the evidence of a witness who testified that in passing up and down the tracks at or about the time of the fire he was frequently struck by cinders of the .size that are usually found along the railroad tracks, and that these cinders were hot enough to bum the skin. It is conceded that where the -sole ground of negligence is a defective spark arrester, and it is sought to overcome the evidence of .the railroad that the spark arrester complied with the statute and was in good working order, evidence of the emission of sparks by
There being no evidence that any engine passing just before the fire was negligently managed, or that its spark arrester was defective, the court did not err in refusing to submit these issues to the jury.
Judgment affirmed.