46 Neb. 750 | Neb. | 1896
Ray recovered a judgment against the railway company for damages caused by the destruction by fire of certain hay lying in winrows on the land of Ray, it being claimed that the fire originated on the right of way of the railway and then spread to the plaintiff’s land. The plaintiff alleged as negligence, first, that the railway company negligently failed to keep its right of way free from combustible materials, and suffered large quantities of dry grass and weeds to accumulate thereon; and second, that the railway company negligently permitted its engines to cast out sparks and coals of fire into said combustible materials. The court submitted to the jury both issues of negligence.
It is first contended by the railway company that there was no evidence upon which to submit to the jury the issue as to whether sparks and coals had been negligently permitted to escape from the engine. This contention is based upon the argument that the uncontradicted evidence shows that the engine which set out the fire had the most approved appliances to prevent such results; that it had been recently inspected and found to be in good condition, and that it was inspected when it reached the roundhouse after the run during which the fire was caused and was again found to be in perfect, condition. We need not consider
It is next argued that the court erred in giving the following instruction: “ If you find from the evidence that the defendant negligently and carelessly permitted dry grass, weeds, and other combustible materiáls to accumulate on its right of way adjoining the plaintiff’s premises so as to unnecessarily increase the hazard from fire, and that by reason of such accumulation of combustible materials fire escaping from defendant’s engine was kindled therein and thence communicated to plaintiff’s property which was thereby destroyed, without the negligence of the plaintiff in any manner contributing thereto, you should find for the plaintiff, even though the escape of the fire from such engine was without any fault on defendant’s part.” The correctness of the general principle stated in this ihstruction is established by Burlington & M. R. R. Co. v. Westover, supra, and was again recognized in Omaha Fair &
It is contended that the plaintiff was guilty of contributory negligence, and- was, therefore, not entitled to recover. By the instruction first quoted, the jury was broadly told that the plaintiff must not have been guilty of negligence contributing to injury. The issue of contributory negligence was, therefore, submitted to the jury. We think that under the evidence it would not have been erroneous to have charged the jury that there was no contributory negligence. Certainly none was shown, unless it was negligent for the plaintiff to permit his hay to lie on the land. In Omaha Fair & Exposition Association v. Missouri P. R.
Finally, it is contended that the court erred in directing the jury, if it found for the plaintiff, to allow interest on the value of the hay from the time of its destruction; but this rule of damages was precisely that stated in Fremont, F. & M. V. R. Co. v. Marley, 25 Neb., 138, to-wit: “ Where property is destroyed by the negligence of another, the owner will be entitled to interest on the value of such, property from the time of its destruction.”
There is no error in the record.
Judgment affirmed.