59 Kan. 328 | Kan. | 1898
This was an action by plaintiffs in error to recover damages caused by the escape of fire from one of the locomotives of defendant in error. A
“ — managed its train carelessly and negligently, and failed to employ suitable means to prevent the escape of fire from the engine that was attached to and drawing said train, and also carelessly and negligently permitted dead and dry grass, weeds, stubble and other combustible materials to remain on the right of way of said defendant Company, and within two hundred feet adjacent to its said track, so that by reason of its carelessness and negligence as aforesaid, and without the fault of these plaintiffs, fire escaped from said engine of said company and set fire to the dead and dry grass, weeds and stubble and other combustible materials on its right of way, . . . and by reason of a continuous body of dead and dry grass, weeds, and other combustible materials, and without the fault of these plaintiffs, said fire was communicated to the premises of these plaintiffs.”
The special findings of the jury fully acquit the Railway Company of negligence in failing to supply its locomotives with the best and most approved appliances to prevent the escape of fire, and also acquit it of negligence in failing to employ careful and competent employees to manage its locomotive; and the jury also specially found that the locomotive had been carefully inspected at the last opportunity preceding the time of the fire, and also that at the time the fire escaped the locomotive was managed in a skilful and
We agree with the Court of Appeals that the findings show that the escape of the fire from the engine was accidental. However, a railroad company must do more than provide its locomotives with proper appliances to prevent th'e escape of fire and keep them in proper repair. It must do more than employ skilful and careful employees in the management of its locomotives ; and must do more than require of such employees skilfulness and diligence in the performance of their duties. It must keep its right of way clear of combustible material, so as to prevent damage from fires accidentally escaping, or, must keep such portions of its right of way clear as in the light
We hardly need to invoke the rule, declared in section 115 of the Code, that the allegations of a pleading should be liberally construed with a view to promote substantial justice between the parties, to show that the defendant in error is mistaken in its interpretation of this petition ; but, certainly, under the requirements of that provision, it cannot be said that the plaintiffs meant to defend their charge of negligente as to combustible material upon the right of way upon their charge of negligence as to defective machinery and unskilful train management, or meant to allege one as the primary and the other as the secondary cause of the fire. Such interpretation would be strained and harsh rather than liberal and benignant.
The petition alleged against the defendant, first, negligent management of the train, and lack of suitable means to prevent the escape of fire ; and, second, negligence in allowing combustible material to accumulate on the right of way, “so that by reason of its carelessness and negligence as aforesaid [evidently referring to all the specified acts of negligence] fire escaped from said engine of said company and set fire to the dead and dry grass,” etc. The stress of argument for defendant in error as to the construction of these allegations is laid upon the clause — ‘ ‘ Fire escaped from the engine.” This it is contended limits the allegations of negligence to the escape óf the fire from the engine, and is not inclusive of the causes of the spread of the fire after it escaped. Grammatically this is perhaps true, but in the evident intent of the'
The jury found that an “unusually high wind” was blowing at the time of the escape of the fire. What an unusually high wind is, with respect to the duty of railroad companies in guarding against the escape of fire, we do not know. The jury found a general verdict against the defendant, notwithstanding the blowing of this kind of wind, and it must,
The judgment of the Court of Appeals is reversed, and that of the District Court is affirmed.