145 Ky. 689 | Ky. Ct. App. | 1911
Opinion of the Coubt by
Affirming.
On April 17, 1909, F. A. Hopkins had a large boundary of his land in Floyd County, Kentucky, burned over by fire. The fire not only destroyed considerable fencing and many saw logs, but injured the growing timber as well. The Chesapeake and Ohio Railway runs through this farm for some distance, and shortly before the fire was discovered on said date a double-header freight train passed over the road. Charging that the fire originated from sparks emitted by one or both of these en-' gines, Hopkins instituted a suit against the road, in which he sought to recover damages in the sum of $500.00
Several reasons were assigned in the lower court why a new trial should be granted, but upon appeal here but one of these grounds is pressed, to-wit, that a peremptory instruction should have been given, on the theory that the evidence did not support the allegations in the petition.
There is a coaling station a short distance below appellee’s farm, and this train stopped there and coaled. It was running some twenty or thirty minutes late. When it passed through appellee’s land, according to the testimony of some six or eight witnesses, these engines were throwing off or emitting large volumes of smoke, and, according to one witness, fire with the smoke, thus evidencing that they were pulling hard. All of the witnesses who testify as to the origin of the fire state that it started shortly after the train passed. Some say that it was before the train had entirely passed that the fire sprang up, while others state that it was as much as ten, twenty or thirty minutes after the train passed before they saw the fire. These apparently conflicting statements as to the time are no doubt due to the vague and indefinite idea which the witnesses had of time; but when they are all considered together it is apparent that the fire was discovered a few minutes after the train passed.
The evidence likewise shows that, when first discovered, it was down near the railroad track, on or near the right of way, which at that point was a hundred feet wide, fifty feet each way from the center of the track. It is also testified to that there was fire on the opposite side of the railroad which started about the same time as the fires on the side where the damage was done. Unquestionably this was some evidence that the fire was started by sparks emitted by these engines.
But, on behalf of the railroad company, it is shown that the engines in use on its road, and particularly the ones that were pulling this train, were equipped with the latest and most approved spark arresters. To meet this evidence, appellee shows that trains passing along the road had at that same point and near theretofore set fire
The court did not err in refusing to give the peremptory instruction asked. The evidence abundantly supports the verdict as to the damage done by this fire.
Judgment affirmed.