148 Ky. 726 | Ky. Ct. App. | 1912
Opinion op the Court by
Affirming.
Appellee, William Winkle, in April, 1910, owned a tract of land just south, of the Kentucky river and east of the appellant railway company’s line. In April, 1910, a barn on this farm with a large quantity of corn, a young mule and other farming contents were destroyed by a fire occnring about midnight. Winkle brought his áctioli against the railway company, charging that the fire was’ occasioned by the railway company’s failure to have proper screens, fenders or dampers, “spark arresters” as srich' contrivances are commonly known, upon its engine's; and that the fire in question was occasioned by burning cinders thrown from such an improperly equipped engine. He obtained’ a verdict and judgment-for $1,500, and the railway company appeals.
It was also urged that the trial court should have directed a verdict in favor of the railway company. The appellant contends that the engine known as the helper or hill engine which passed the point of the fire shortly before it broke out was the only one which could have done the damage. There was testimony in the record by the plaintiff that he found on the day after the fire coal cinders in a stalk pile lying against the end of the barn as it stood before the fire; that they were as large as the end of the witness’ finger; that this particular engine within the witness’ observation had thrown sparks; that within two weeks before the time of the accident fire had caught some five or six different places right below plaintiff’s barn; that the day after the fire he saw this hill engine throwing sparks, some of which were as big as the end of a finger, as much as 80 feet above the smokestack; that he had seen the same engine within three or four days after the fire start a fire on the opposite side below where his barn stood. Another witness testified that he
Gr. L. Zerkle, a fireman on the helper engine, testified that he was on the engine 'on that night. He corroborated the testimony as to the examination of the spark arrester, and said as well that when sparks as large as a hen-egg passed through the screen there was something wrong with it. The proof for the defendant is clear that these engines and especially the helper engine were
“But it is equally well settled that in an action against a railroad company to recover for loss by fire alleged to have resulted in negligence in operation, or for failure to have the spark arrester in proper condition, testimony showing that sparks and cinders escaped from the locomotive in unusual quantities was competent, and will, of itself, warrant the presumption that the arrester was out of order, or was improperly adjusted, and that the defendant was consequently guilty of negligence in this regard.”
The Guttman case holds that evidence of this character is sufficient to take the case to the jury and that it was not of necessity overcome by evidence that the engines were fitted with approved spark arresters, because such testimony might not have been credited by the jury who were the arbiters of the facts. We, therefore, conclude that there was ample evidence to take the case at bar to the jury and, that there was no error in the refusal by the trial court to award the peremptory instruction asked for by the railway company.
It is also argued that the trial court erred in its instructions to the jury. Section 782 of' the Kentucky Statutes, which was followed in the pleadings, provides as follows: “All companies shall place in or around the tops of the chimneys or engines a screen, fender, damper or other appliance that will prevent as far as possible sparks of fire from escaping from such chimneys.” The
Perceiving no error prejudicial to the substantial rights of the appellant we affirm the judgment of the trial court.