3 Kan. App. 671 | Kan. Ct. App. | 1896
The opinion of the court was delivered by
The defendants in-error, A. P. and S.
‘ ‘ managed its train carelessly and negligently, and failed to employ suitable means to prevent the escape of fire from the engine that was attached to and drawing said train, and also carelessly and negligently permitted dead and dry grass, weeds, stubble and other combustible materials to remain on the right of way of said defendant company and within said 200 feet adjacent to its said track, so that by reason of its carelessness and negligence as aforesaid, and without the fault of these plaintiffs, fire escaped from said engine of said company and set fire to the dead and dry grass, weeds, stubble and other combustible materials on its right of way, . . . and by reason of a continuous body of dead and dry grass, weeds and other combustible materials, and without the fault of these plaintiffs, said fire was communicated to the premises of these plaintiffs.”
Special findings of fact were made by the jury showing that the fire started from sparks escaping from engine No. 712, which was drawing a train of cars in the vicinity of the premises ; that such engine was furnished with appliances which were well known, approved, and reasonably safe in order to prevent the escape of fire or sparks, and, at the time the fire escaped, were in good order and in proper position ; that the engineer and fireman in charge of said engine were competent and careful, and were properly performing their respective duties at the time ; that the railway company had burned a fire-guard 140 feet wide along the north side of the track where the fire started ; and that an unusually high wind blowing from the south
The only question for our consideration is: Do the facts as found by the jury negative the charge of negligence, and show that the plaintiff in error is not legally liable for the loss sustained? It is clear from the findings that the escape of the fire was accidental. There was no fault in the management of the train, nor in the .appliances used for the prevention of the escape of sparks. Consequently the allegations of the petition in this respect are not only not sustained, but are disproven. This, we think, determines the material issues in the case in favor of the plaintiff in error. It is contended, however, by the defendants in error that the general verdict of the jury sustains the allegation of negligence in permitting dry grass, weeds and other combustible materials to remain on the right of way, which, it is alleged, is at this point 200 feet wide on each side of the track. As we construe the pleadings, this does not aid the defendants in error. The petition alleges that the damages were caused by a fire which escaped from the engine through the careless and negligent management of the train and the failure to employ suitable means to prevent the escape of fire. It does not present a case of an accidental fire and its communication to property because of negligence ,in not keeping the right of way in a reasonably safe condition. The fire is said to have been communicated to the plaintiff’s premises “by reason of a continuous body of dead grass, weeds, and
Even conceding that the petition is sufficient to authorize a recovery upon proof of the negligent keeping of the right of way and permitting the accumulation thereon of combustible materials, do not the special findings of the jury negative the plaintiffs’ claims? Whether negligence in a particular case is shown is ordinarily a question for the jury ; but when the facts are undisputed, or are definitely found by the jury, and only one conclusion can be reasonably drawn therefrom, it becomes a question for the court. (K. P. Rly. Co. v. Pointer, 14 Kan. 37 ; Dewald v. K. C. Ft. S. & G. Rld. Co., 44 id. 586.) Can it be said with any reason or justice that a railway company is chargeable with the negligent operation of its road when it has guarded against danger from fire accidentally escaping from its passing trains by removing all combustible materials within 140 feet of its track?
We think, under the issues and findings of the jury, that the fire in this case which was communicated to the property of the defendants in error must be regarded as purely accidental. In this view of the case, the motion of the plaintiff in error for judgment on the special findings of the jury should have been sustained, notwithstanding the general verdict.