180 Ky. 418 | Ky. Ct. App. | 1918
Opinion of the Court by
Affirming.
On April 9,1915, a stock barn and a large quantity of corn, hay, and farming implements, belonging to Boyd Whitt, were destroyed by a fire which, it is alleged in this action, started from cinders and coals of fire emitted from the smoke stack of the engine of appellant company. The barn stood almost three-fourths of a mile from the railroad but only a short distance from a forest which extended almost to the railroad. In two or three minutes after the passing of a passenger train on the morning before the day of the fire, two ladies saw fire start on the right-of-way of the company; there was no person about the fire nor had any one been observed in that vicinity for some time before the fire started. There is no reasonable hypothesis on which to account for the fire, except from the cinders which fell from the passing train. The fire started on top of a high cut. The-top of the smoke stack was almost even with the top of the ground of the embankment on either side of the cut; there' was a strong gale blowing, and the train had scarcely, passed, and was not out of hearing when the fire was first observed. There was also evidence tending to show that the railroad company had violated section 790, Kentucky Statutes, requiring railroad companies to keep their right-of-way clear and free from weeds, dry grass, decayed timber and other filth which from their nature and condition are combustible and likely to communicate fire from passing trains to abutting property. The two witnesses who first discovered the fire say that the combustible matter upon the right-of-way was sufficient to make a large flame and that the wind carried it rapidly into the leaves and timber on adjacent property in the direction of the barn which was destroyed the next day. A number of neighbors turned out to fight the fire and were doing their utmost to check it when a shower of rain came and apparently quenched the fire, but early next day the fire was again raging through the forest and the
Under our statutes, section 790, a railroad company is prima facie negligent to allow combustible or inflam
In a long line of cases this court has held that evidence of the starting of other fires along the right-of-way in a similar way to the one in question, and not too remote in time, is competent evidence tending to show that the company did not employ the most reliable spark arresters in general use by railroads, or the arrester was out of order, or not properly adjusted, or if this be not true in whole or in part, then the engine was negligently operated. Several witnesses in this case testify to the starting of other fires along the right-of-way about the same time as the one in question, and at least one other fire was started upon the same day at no great distance from the one charged to have destroyed the barn. If large sparks of fire were emitted from the smoke stack, it would be evidence of the insufficiency or lack of adjustment of the spark arrester, or that the engine was not skillfully operated. In many reported cases it has been held that the evidence of railroad employes to the effect that the spark arresters had been examined and found to be in good condition and properly adjusted immediately before and immediately after the starting of the fire, is not conclusive, but that circumstances such as the scattering of large coals, or the starting of fires along the right-of-way may be received in evidence to contradict the direct testimony of the trainmen. Here the jury heard all the facts, and from the verdict, we conclude, found that the fires which originated along the right-of-way on the day of the one in question and on other days, prove that the spark arrester was either out of order, out of date, or out of position. If the arrester had been of correct type, in order and properly adjusted, so many fires would not have resulted. These' facts were for the jury, and when taken altogether fully justified the conclusion reached. There is evidence in the record from which it may reasonably be concluded that the company was negligent in at least two respects, (1) in failing to have its engine properly equipped with a spark arrester in good condition and properly adjusted; and (2) in failing to keep
Perceiving no error to the prejudice of the appellant the judgment is affirmed.