143 Ky. 189 | Ky. Ct. App. | 1911
OPINION OF THE COURT BY
Affirming.
Appellee, Arthur Preston, brought this action against appellant, Chesapeake & Ohio Railway Company, to recover damages for the destruction of his barn and1 contents by fire which he alleged was due to the negligence of the railway company. The first trial resulted in a hung jury. Upon the second trial the jury returned a verdict in favor of appellee for the sum of $1,700. Prom the judgment based1 thereon, this appeal is prosecuted.
The only error assigned for reversal is the failure of the trial court to award appellant a peremptory instruction.
Appellant operates a line of railway from Ashland, Kentucky, to Pikeville, Kentucky. In the county of Lawrence there is a station known as Craves Shoal's. The only buildings in the immediate vicinity of the station are a dwelling house, store room and barn belonging to ap-pellee. These buildings are on the north side of the railroad track. The barn which was destroyed is located about 58 feet from the track, 227 feet west of the store room, and about the same distance from the residence. On the evening of March 31,1910, appellant’s southbound train, No. 38, drawn by engine 813, was about five minutes late, and reached Craves Shoals at about 6.21 p. m. About 6:50, or . thirty minutes after the passage of the train, appellee’s barn was discovered to be on fire. Including the basement the barn was three stories high, 71 feet long, and 36 feet wide. It also had sheds on three sides. The main building was covered with clapboards.
While there was proof to the effect that other engines on appellant’s trains were frequently seen to emit live sparks, there was also proof that engine 813, which was the regular engine on passenger train 38, sent out live sparks both before and after the fire. Shortly after the fire appellee and members of his family saw sparks of fire come from the engine of passenger train 38; and these sparks were seen to fly towards and drop in the vicinity of the former location of the barn. Shortly after the fire, appellee picked up cinders in the vicinity of the barn. While appellee and four or five others were on the platform when the train arrived, neither appellee nor the others'testified that they saw any sparks coming from the engine of the train. It does not appear, however, that any of these witnesses were observing the engine for the purnose of seeing whether it was emitting sparks.
The testimony for appellant was to the effect that the spark arrester upon the engine in question' was in position and properly equipped, that the train was properly handled, and no sparks were thrown out in the neighborhood of Graves Shoals. These facts were testified to by the engineer and fireman, and' also by three other employes who examined and tested the spark arrester. ' -
For appellant it is insisted thát the facts of this case bring it within the rule laid down in C., N. O. & T. P. Ry. Co. v. Sadieville Milling Co., 137 Ky., 568. In that
Judgment affirmed.