89 Kan. 573 | Kan. | 1913
The opinion of the court was delivered by
The plaintiff sued under the statute for damages to an apple orchard caused by a fire-alleged to have been set out by the defendant in the operation of its road. The plaintiff recovered, and the defendant appeals, assigning as error the ruling of the court in the admission of evidence, in giving and refusing instructions, in refusing to submit certain special questions, and in denying a motion for a new trial.
The testimony showed that very soon after the passing of a certain freight train fire was discovered near the right of way, and the defendant complains that evidence was received showing that cinders were found near the right of way and their description was given. It is said that as the defendant’s track was ballasted with cinders and there was no attempt to prove that those found were such as were ordinarily emitted from a locomotive the testimony amounted to an invitation to the jury to invade the realm of conjecture. An examination of the record, however, fails to show that any error was committed in this respect.
Testimony to the effect that a fire was discovered a few days before the one in question, when a similar train passed and when the wind was in the same direction, was admitted, and it is argued that this was too remote and was incompetent. But while none too convincing it was competent within the rule stated in Tuttle v. Railway Co., 86 Kan. 28, 119 Pac. 370.
Considerable complaint is made about permitting certain witnesses to answer as to the value of trees and their product, but most of this evidence was on reexamination after the case in chief had been'fairly
It is argued that the court, in instructing as to the burden of proof, erred in saying that if the plaintiff had proven certain facts she would be entitled to a verdict, “unless it is proven, by the preponderance of the evidence, that the defendant was not guilty of negligence in the operation of the engine in question or in failing to equip said engine with proper appliances to prevent the escape of fire, or in the manner of maintaining its right-of-way.” It is insisted that this amounted to an instruction that it was the duty of the railroad company so to equip its engine as abso-’ lutely to prevent the escape of fire. We do not think the language bears this interpretation. The jury had been told in other instructions that the defendant was not an insurer against loss by fire and that if it was proven that it exercised ordinary care and prudence in the equipment and operation of its engine and the maintenance of its right of way the plaintiff could not recover. The language used was similar to an expression found in Railroad Co. v. Chace, 64 Kan. 380, 381, 67 Pac. 853. We dio not think the jury could have been
The defendant requested the .court to submit thirty-three special questions and complains that answers to only eight of them were required. The twenty-five questions refused consisted mainly of a series of interrogations as to whether the engine was properly equipped and as to whether the individual members of the train crew were competent, and as to whose individual negligence or mismanagement the fire was due and what could have been done to prevent the fire. The case was tried on the theory that the engine in question was No. 3644, and while the court might have permitted the question calling for this answer, as there was no dispute about the matter, no harm arose from the failure of the jury to find specially on this point. They did find that the fire originated from the engine, and while, as frequently observed, the matter of special questions has many times been grossly abused, still, within proper limits, parties have a right to have them submitted and answered. (Coblentz v. Putifer, 87 Kan. 719, 125 Pac. 30.) The defendant was entitled to a finding by the jury as to whether the engine in question was lacking in proper equipment or whether the fire originated from improper operation of the engine by those in charge. Many of the questions calling for details touching insufficiency or mismanagement were properly refused. While the statute makes the setting out of a fire caused by the operation of a road prima facie evidence of negligence, still when the jury find that the fire originated from the engine they should be required, upon the request of the defendant, also to find whether it was caused by insufficient equipment or by improper management. We can not agree with the contention of plaintiff’s counsel, that if half of the jurors believed the fire was caused by a defect in the engine and the other, half that it was caused by improper operation, the plaintiff would still
The judgment is therefore reversed with directions to grant a new trial.