89 Ky. 638 | Ky. Ct. App. | 1883
DELIVERED THE OPINION OP THE CODRT.
This is an action by appellee to recover of appellant damages for the burning and injury to his fence, grass,, hay, and other property, alleged to have been ignited
The only errors presented to the lower court as grounds for a new trial, and, consequently, as has heretofore been held, the only ones than can be considered on this appeal, relate to the competency of certain evidence admitted on the trial, and to the instructions. In the first paragraph of the petition it is stated that the sparks of fire by which the premises and property of appellee were burned and injured •escaped from the chimney of appellant’s locomotive •engine by reason of the failure of those operating its train of cars to comply with the requirements of an •act of the General Assembly, entitled “An act to protect the owners of property in this Commonwealth .against damages by fire from steam cars,” approved January 30, 1874; and in the second paragraph it is stated that the injury complained of was caused by the negligence of those in charge of the train. The .act referred to is as follows:
“§ 1. Be it enacted by the General Assembly of the Commonwealth of Kentucky, That it is hereby made the duty of all railroad companies, or persons running ■or operating .cars by steam on any railroad track or tracks in this Commonwealth, to place on or around the tops of the chimneys of such car or locomotive ;a screen,, fender, damper, or other preventive, as will*641 prevent, so far as possible, sparks of fire from escaping from suck cars into fields, pastures or outlands, or igniting any timber or grass, kay, corn-stalks, house, •stable, or any combustible matter whatever.
“§ 2. Any person or railroad company failing to comply with the provisions of the first section of this act shall, upon conviction, be fined in any sum not ■exceeding two hundred dollars for each offense, recoverable by indictment, besides being responsible to any person injured by fire escaping from cars run or operated by them. Such damages may be recovered in any court having jurisdiction of the same,” &c.
In some of the States railroad companies are, by statute, made absolutely liable for injuries caused by fire proceeding from their engines, irrespective of any question of negligence; but as such companies are, in this State, authorized by law to operate their railroads by steam, which necessitates the use of fire, they should not, on principle, in the absence of a statute requiring it, be held liable for injuries unavoidably produced by fire kept and used to generate steam; and that view is in harmony with the act just quoted; for persons and companies operating railroads are not required by that act to provide appliances that will effectually and certainly, under every condition, prevent the escape of sparks of fire from tbe chimneys of their locomotives and cars, but only to provide and use the best and most effectual preventive known to science, so as to prevent, as far as possible, injury being done in the mode described in the statute to property near railroads. Therefore, while the act does not, nor was intended by the Leg
It appears that the fire which injured and destroyed.' the. property of appellee occurred September 5, 1881, and evidence was introduced on the trial in support of the allegation that it was caused by sparks of fire that escaped from the chimney of the locomotive that, with a train of cars attached, passed the farm of appellee about noon of that day. It, therefore, became a material question of fact about which the evidence, though entirely circumstantial, was contradictory, whether the screen or fender attached to the-chimney of the locomotive was open or closed when that train passed; for it would be no defense to the-action to show that the ajjpliance required by the statute was attached to the locomotive chimney, if' not closed while the train was moving, it being useless as a preventive if kept open.
The evidence introduced on the trial of which appellant complains was, substantially, that trains frequently set fire to fences and grass at other places in the vicinity of appellee along the line of that' road, and at different times during the fall of 1881. It was also stated that the trains usually passed with the screen or fender up or laid back.
In the language of the court in the case of Sheldon v. The Hudson River Railroad Company, 14 N. Y., 218, “The business of running the trains on a railroad supposes a unity of management and a general similarity in the fashion of the engines and the character of the operation.” The question in that case was, whether sparks and burning coals were frequently dropped by engines passing on the same road and upon previous occasions, and the evidence was held competent to show that about the time when it happened the trains which the company was running past the location of the fire were so managed in respect to the furnaces as to be likely to set on fire objects not more remote than the property burned. The same doctrine was announced in the subsequent case of Field v. New York Central R. Co., 22 N. Y., 339. In our opinion, the reasons given in the case referred to in favor of the competency of the evidence there considered apply to this case, and the evidence objected to was properly admitted by the court.
.The judgment must be affirmed.