92 Ky. 645 | Ky. Ct. App. | 1892
delivered the opinion of the court.
The appellants, a mercantile firm in the city of Cin
The depot was a frame building, about twelve years old, and the roof was covered with shingles. About half past nine o’clock, and after the appellee’s agents were through with their business for the night, the depot was closed ■and the agents went to their respective homes, not leaving the depot in charge of a watchman. About half past ■seven, p. m., a traction engine was put off the appellee’s cars at the depot, which was moved about forty or forty-five feet from the depot building, but still on the appellee’s ground; and the persons in charge of the engine— eight or ten in number — commenced putting water in the boiler of the engine, which the appellee’s agents probably observed; and after the appellee’s agents left, the persons in charge of the engine supplied the furnace with light ■dry wood, and by twelve o’clock at night, the engine was moved off appellee’s grounds by the steam produced by the firing of said wood. About two or three hours there
"Was there sufficient evidence of negligence to authorize the court to submit the question of negligence to the jury?
We may here state that there is no proof that the sparks were emitted from the chimney of the engine. But it appears that those engaged in firing, saw no sparks-emitted from the chimney of the engine! It also appears that sparks would probably have been emitted from the chimney, unless a spark arrester was properly attached to the chimney; and the fact that no sparks were seen by those engaged in raising steam and working the engine,, nor by others for that matter, would furnish an inference of fact that there was a protection against damage from flying sparks, rather than that the depot was fired by them. But the kind of traction engine mentioned is in common use in this country, and they are generally moved from place to "place as the one 'in question was-moved, and damage resulting from their being moved from place to place, 'by firing houses and fields, is so seldom that no presumption arises that it is probably dangerous to such property to thus move them. And if it be a
But be this as it may, and concede for the sake of the argument that the agents had reason to believe that steam was to be raised and the engine moved that night, yet, it does not follow that the appellee would be liable for the destruction of the appellant’s property, unless the agents had reason to believe that the depot would be endangered by sparks flying from the engine. But, as said, there is no proof directly, or by inference, that the agents had reason to believe that there was such danger; and in the absence of such proof, there is no presumption against the appellee. For its responsibility, in a case like this, is not that of a common carrier, but that of a warehouseman for hire. And there is no presumption of negligence
The liability of the appellee, as a common carrier, to the appellants, ceased upon the expiration of a reasonable time after putting the trunks off at the depot for the appellants to take control of them; and upon the expiration of such reasonable time, the appellee’s liability to the appellants (the trunks being in appellee’s custody), was that of a warehouseman for hire; and, as said, there is no presumption of negligence against a warehouseman, but the cause must appear from the evidence. (See Louisville, &c. R. Co. v. Mahan, 8 Bush, 186.)
So, also, the fact that the depot building being at a waystation in a small town, and not exposed to any greater danger from fire than usually attends like places, does not create any presumption of negligence, reasonable prudence being used, on account of the building being constructed of pine timber. (See Louisville & Nashville R. Co. v. Brownlee, 14 Bush, 590.)
The judgment is affirmed.