A'fire caused by sparks escaping from an engine on the Union Pacific railroad destroyed a moving van or truck belonging to Park Hetzel. The insurance company paid him $1,400, which was the amount of loss covered by a policy held by him, and under the subrogation clause of the policy, brought this action against the director-general of railroads and the railroad company to recover the amount paid. Hetzel, being joined as a defendant and asked to set up any claim he might have, filed a cross-petition claiming damages to the amount of $105.50 for property burned but not covered by insurance.
The answers consisted of a general denial and the defense of contributory negligence of the driver of the truck in failing to keep a proper lookout and to discover that the truck was on fire, and the failure to use ordinary care in attempting to extinguish the fire before the loss occurred. The director-general and the railroad company appeal from a judgment in favor of the insurance company and in favor of Hetzel on his cross-petition.
The truck or van •was loaded with household goods which were being moved from Lawrence to Perry. It was an open truck with an enclosed cab, the sides being made of slats from four to six inches apart. The household goods were wrapped with furniture pads made of cotton in the form of a bedquilt, and the goods were covered on top with an oiled tarpaulin. The accident occurred about 11 o’clock on a cold day in February, when there was a strong wind blowing from the west. Hans Anderson, an employee of Hetzel, was driving, and with him in the cab was Wyman, a helper. They liad reached the station at Midland and stopped on the east side of the track for a train to pass. Both Anderson and Wyman testified that while they were waiting a rain of sparks and cinders came down on the truck that sounded like hail. Anderson testified that he knew that sparks sometimes escaped from engines and thought of the possibility of fire at the time, but notwithstanding this he continued his journey without opening the door and stepping out to investigate, and that if he had done this he could have discovered whether the goods had caught fire. He thought at the time that there were a lot of sparks and cinders dropping on the truck. After the train passed he drove across the track. The wind was blowing strong from the northwest. When they had gone about a quarter
The' court instructed that under the statute, proof of the fact that the fire was caused by the operation of the railroad made a prima facie case of negligence against the director-general and the railroad company; that if they found that the railroad company and Mr. Hines were guilty of negligence then they were liable for the injury unless the men in charge of the truck were guilty of contributory negligence; and that the men operating the truck were required to use reasonable and ordinary care,, which means just that care and caution that a man of reasonable prudence would have exercised in the same situation.
The contention is that the persons in charge of the truck were guilty of contributory negligence as a matter of law, and that this appears from the undisputed facts. It is argued that the undisputed evidence shows they knew that the sides of the truck were open, and that the contents of the truck were highly inflammable, and, having heard the sparks and cinders falling like rain upon' the truck, and knowing that with the strong wind blowing there was likelihood of fire starting from the sparks, and knowing that their view of the .contents of the truck was entirely blocked by a piano immediately behind their seat, the failure to stop.and get oüt and make an examination-before the fire could gain headway can be construed as nothing less than contributory negligence. The contention Was raised by a demurrer to-the evidence, by requested instructions and by a motion for judgment. It is true there is no dispute about the facts. But it was, in our opinion, a question for the jury to determine whether the failure of these men to get out of the cab and examine the contents of the truck to see whether fire had started was a failure to use' the reasonable cate and prudence that ordinary persons would have used. The defendants rely upon Walker v. Railway Co., 76 Kan. 32, 90 Pac. 772, an action for fire damages against a railroad company. In the course of the opinion it was said in substance that a person cannot invite an increased peril or needlessly or recklessly put his property in a position ©f known danger and at the same time be free from fault, and the court referred to the rule that after a fire has been started an owner should
In discussing what is proper exercise of care it is said:
“In- the last analysis it will be found that knowledge of the peril is the basic element of duty, from which it may be concluded that the care which must be exercised in anjr particular case is proportioned to the actor’s knowledge, actual or imputed, of the danger flowing from the act performed. . . . Where a danger actually is foreseen, the duty is imposed to adopt every possible precaution to avoid an injury therefrom.” (20 R. C. L. 25, 26, citing Mastin v. Levagood, 47 Kan. 36, 27 Pac. 122.)
But it is said :
“The policy of the law has relegated the determination of such questions to the jury, under proper instructions from the court. It is their province to note the special circumstances and surroundings of each particular case, and then.say whether the conduct of the parties in that case was such as would-be expected of reasonable, .prudent men, under a similar state of affairs.
“Contributory negligence, it has been said by the courts, is ‘the neglect of the duty imposed upon all men to observe ordinary 6are.’ . . . The true foundation of liability is knowledge — or what is deemed in- law to' be 'the same thing; opportunity by the exercise of reasonable diligence, to acquire knowledge — of the peril which subsequently ■ results in injury. . . . Or, as it generally is expressed, .a plaintiff will not be held to have been guilty of contributory negligence if it appears that he had no knowledge of the danger, and conversely he will be deemed to have been guilty if-it is shown that he knew of the peril and might have avoided it by the exercise of ordinary care.
“It is said that when the defense of contributory negligence is urged as ground for a nonsuit ‘it must appear that reasonable men, acting as the triers of the fact, would find, without any reasonable probability of difference in their views, either that the plaintiff knew and appreciated the danger, or that ordinarily prudent men under the same circumstances would readily acquire such knowledge and appreciation.’ ” (20 R. G. L. 26, 106, 107, 108, citing numerous authorities.)
“When, however, the specific evidence submitted only goes to the extent of establishing knowledge of the defect, the question of his contributory negligence should not be withdrawn from the jury. Indeed, it can only be in rare cases if ever that the question becomes one of law. In other words, it is for the jury to determine whether knowledge of the physical characteristics of the offending instrumentality constituted a sufficient warning of peril to the plaintiff.” (20 R. C. L. 111.)
In the present case there might arise in the minds of reasonable persons a difference of opinion as to what an ordinarily prudent person would have done under the circumstances, and so the question became one for the jury and not for the court. The court’s instructions in respect to contributory negligence stated the law correctly. Negligence, contributory negligence, and proximate cause are for the jury unless the proof thereof is so clear that different minds cannot reasonably draw different conclusions. (Gas Co. v. Dabney, 79 Kan. 820, 102 Pac. 488.)
There is a complaint that one instruction respecting contributory negligence is open to the objection that the jury were not given to understand that negligence of the persons in charge of the truck would bar the insurance company from recovering the amount it had paid Hetzel, for the reason that Hetzel himself was asking damages in the same case, and the instruction charged that “their negligence would have been chargeable to Mr. Hetzel, they being his agents and servants.” It is insisted that nothing in the instruction having been said as to the effect of their negligence upon the right of the insurance company to recover, an instruction requested should have been given which concluded as follows: “then there can be no recovery in this case for such damages as might have resulted from such failure to so detect and discover the fire.” From the instructions, taken as a whole, we think the jury could not fail to understand just how the insurance company came to have the right to maintain an action at all. The court told the jury:
“Now that means simply this, gentlemen, that this policy provided that if Mr. Hetzel’s truck was burned through the fault of anybody other than Mr. Hetzel, and the company had to pay the loss, the company would step into Mr. Hetzel’s shoes and have a right to recover from the'wrongdoer, the party that occasioned the loss. That’s just what that means; and they claim they paid Mr. Hetzel $1,400, and that Mr. Hetzel assigned his claim to the insurance company.”
The jury returned verdicts in favor of the plaintiff for $1,400
Another ground of defense was raised in the answer and is still insisted upon. It is claimed that it was error to join the railroad
The judgment, as modified, is affirmed.