92 Ky. 55 | Ky. Ct. App. | 1891
delivered the opinion of the court.
The appellee’s meadow, orchard, fences, etc., were fired and consumed or injured by the sparks flying from the chimney belonging to appellant’s railroad engine, for which the appellee recovered judgment for two thousand dollars in damages. Said fire was caused, it is contended, by the negligence of the appellant in not having upon said chimney a proper spark arrester, or in not haying the same properly adjusted.
The proof is that the chimney had attached to it what was known as the Diamond Spark Arrester, and that kind was as good for that purpose as any in known use, and which, when in good order and properly adjusted, would ordinarily extinguish fire sparks to such an extent as to prevent the spread of fire from their flying from the chimney. Now the following facts were proven, from which the jury had the right to infer that the arrester was either not in good order, or it was improperly adjusted :
The sparks were seen, in the daytime, on the occasion of the firing of said property, flying from the chimney in large showers into the field, In corroboration of this evidence as to the sparks, two other witnesses say, that in a few days after the fire they saw the sparks flying in the daytime, about the same place, in large quantities from said chimney, which fired a fence on the side of the railroad track. The jury was authorized to believe that these things would not have happened but for the fact that the arrester was either out of proper order or was improperly adjusted, consequently appellant was negligent in that regard. Having held that there was sufficient evidence to authorize the jury to find that there was negligence, the question is, was the jury properly instructed ? Upon that subject the act of the Legislature of this State, approved January 30, 1874, and quoted in the Kentucky Central R. R. Co. v. Barrow, 89 Ky., 638, provides
The proof was heard, pro and con, without objection as to the negligence complained of, consisting in a. defective spark arrester, or improperly adjusting it, which cured the defect in the petition in that regard, if any defect, in that particular, there was.
The judgment is affirmed.