58 Kan. 768 | Kan. | 1897
M. H. Osborn brought this action against the Atchison, Topeka & Santa Fe Railroad Company to recover damages for the destruction of several stacks of wheat by a fire alleged to have been negligently started by one of the Company’s locomotives. The wheat was stacked on Osborn’s premises, which adjoined the right of way and depot grounds of the Railroad Company, at Danville ; and it appears
It appears that the stubble remaining after the wheat was cut was about fifteen inches high, and there had grown up in it a tickle grass, which had ripened and was very dry and combustible when the fire occurred. The agent of the Company had requested the plaintiff to plow fire-guards for the protection of his wheat; and after the agent had promised to pay him at the rate of three dollars per day for plowing fire-guards, he plowed two sets of furrows near the right of way, after which, the employees of the Company burned out the stubble and grass between the furrows, thus making a fire-guard about one hundred feet wide. Although Osborn was plowing on either side of the'stacks near the time of the fire, no guards were plowed immediately around the stacks, nor was any plowing done across the end of the unplowed ground which extended to the right of way, other than the fire-guard already mentioned.
There was testimony tending to show that an inspection was made, shortly before and shortly after the fire, from which it appeared that the engine was in good condition, and also that it was supplied with modern improvements calculated to prevent the escape of fixe.
The testimony of David Morgan, as to the condition of the engine and whether it had the latest improvements "to prevent the escape of sparks and fire, was rejected. It was stricken out upon the ground that the witness had not shown himself to be competent to testify upon the subject. In this we think there was error. He was familiar with locomotives, had been a boilermaker for about fifteen years, and had acted as boilermaker and inspector for the plaintiff in error between four and five years, during which time his duties were to examine nettings, ash-pans, stacks and dampers, and to inspect the engines which came in and went out, as to their condition. There was no contrary"testimony as to his qualifications, and, in view of that which has been related, we think he was
Some other objections are raised which we do not deem it necessary to notice ; but, for the errors mentioned, the judgment will be reversed, and the cause remanded for another trial.