56 Kan. 176 | Kan. | 1895
The opinion of the court was delivered by
: I. The original action was brought by the defendant in error against the plaintiff in error to recover damages for the alleged negligent burning of a grain elevator, a hay-press, some baled and a quantity of loose hay, and other property. The trial resulted in a verdict and judgment for the plaintiff, September 30, 1890, for $2,624.44 damages, $150 attorney’s fee, and costs taxed at $272.75. The allegation of negligence was as follows :
“ While said defendant was engaged in operating the defendant’s railroad, and while running its locomotive and train along said railroad and past the premises of plaintiff, as aforesaid, the defendant so carelessly and negligently managed and controlled its locomotiveand train that fire escaped therefrom, and*178 on the 29th day of March, 1890, burned the following-described property belonging to the plaintiff.”
The instructions given to the jury assumed that on proof of the setting out of the fire by the defendant’s locomotive it devolved upon the .railroad company to-show, not only that the locomotive was properly and carefully managed and controlled, but that it was sufficient and in good condition and repair. This, would doubtless be so under the act of 1885, (¶ 1321, Gen. Stat. 1889,) if the allegation had been general, to the effect that the fire was negligently caused by the defendant in operating its railroad; but the averment restricts and limits the charge to the negligent management and control of the locomotive and train, and, in the absence of any amendment, the court was. not warranted in saying that in order successfully to defend itself the company must prove that the locomotive was sufficient and in good condition and repair. The cause of action in St. L. & S. F. Rly. Co. v. Fudge, 39 Kan. 543, originated prior to the enactment of the statute of 1885, but the general principle of pleading therein as to limiting the charge of negligence is applicable even under the statute, where the allegation of negligence is specific and not general. The defendant had a right to assume that any complaint of the insufficiency or want of repair of the locomotive was waived, the plaintiff relying upon the specific charge that the fire was caused by its negligent management and control. As further bearing on the limitation of the issue by the pleadings, see Clark v. Mo. Pac. Rly. Co., 48 Kan. 654, 662.
II. The defendant pleaded and largely relied upon the contributory negligence of the plaintiff as a defense, such negligence arising from permitting dry hay to accumulate around the building in large.
III. The railroad company assigns as error the failure of the court to give the following to the jury:
“You are instructed that where a man stores hay in buildings located in close proximity to a railroad track, and stacks hay on the outside of such building and against such building, and allows and permits loose hay to blow and scatter in and around such premises in such manner as to make it reasonable and probable that such scattered hay will be fired by sparks emitted from engines passing up and down such railroad track, the plaintiff is guilty of such carelessness and negligence as will bar him from any recovery for loss of property from such fire.”
And the company also complains of the giving of the following instruction on the same general subject:
“But if you further believe that plaintiff allowed hay or other rubbish to accumulate on or about his property, or left any cracks or openings in his building through which fire from a passing locomotive could readily communicate to the hay or other inflammable master inside such building, and that the fire was first communicated to the scattered hay or other inflammable rubbish so left exposed, or to the hay or other inflammable matter exposed through the cracks or openings of the buildings, and you further believe that the doing or permitting these things on the part of plaintiff were what an ordinarily prudent man would not have done under the same or like circumstances, then plaintiff cannot recover because of bis negligence.”
Counsel say:
‘ ‘ In this instruction the court fairly submitted the*182 facts concerning the condition of the premises and how the fire was communicated to the building, . . . a state of facts which . . . can amount to nothing less than contributory negligence, and which must be pronounced such by the common judgment of all reasonable men. The court then leaves it to the jury to say whether it is negligence or not, and directs them that their determination of the question depends upon whether they believe that the doing or permitting these things is what an ordinarily prudent man would not do in a like case.”
It is our opinion, however, that the instruction requested was properly refused, for it did not embrace all the elements necessary to constitute negligence as a matter of law. It did not include the conditions of the wind, the weather, the earth, the frequency of the passing of the locomotive, the length of time that the premises had been littered, whether temporarily or habitually, nor other circumstances which might properly be taken into account in the solution of the question of the plaintiff’s contributory negligence. Neither did the instruction given by the court aim at an enumeration of all the circumstances which would justify a finding of negligence, but after reciting what the evidence tended to prove, it was properly left to the jury to say whether an ordinarily prudent man would have done so under the same or like circumstances ; this being the test of negligence. There was no error in the refusal of the instruction, nor in the instruction given by the court.
IV. The court instructed the jury to allow interest on the amount of the loss at 6 per cent, per annum from the date of the fire to the time of trial. A recovery of damages for simple negligence of a party to whom no benefit could accrue by reason of the injury inflicted does not include interest as such. Neither
The judgment must be reversed, and the case remanded for a new trial.