90 P. 772 | Kan. | 1907
The opinion of the court was delivered by
C. C. Walker brought an action against the Chicago, Rock Island & Pacific Railway Company, alleging that sparks were thrown from a locomotive of a passing freight-train, starting a fire on his farm which ran through his young orchard, destroying some of the trees and damaging others.
By the testimony it appears that the railroad of the defendant passes diagonally through plaintiff’s farm. On one side of the track plaintiff had planted several hundred young apple trees, in the spring of 1903, and in that year had raised a crop of corn in the same field. The corn had been cultivated in the growing season,
On March 9, 1904, the fire occurred which burned the trees, and the.testimony tends to show that the sparks and cinders from defendant’s engine started the fire in the dry grass in the plaintiff’s field and not on the right of way of the railway company. The verdict was in favor of the defendant, and the plaintiff complains of the following instruction given by the court on the subject of contributory negligence:
“The defendant in this case claims that if the fire did originate from the defendant’s train the plaintiff himself was guilty of contributory negligence, and that by reason of such contributory negligence he cannot recover in this cause. And the contributory negligence of which the defendant alleges and claims the plaintiff to be guilty is that he permitted combustible grass and stalks to grow and accumulate and become dry in very close proximity to the right of way of the* defendant company, and that he did not exercise, ordinary and reasonable care in protecting his own property from fires that are liable to originate from the ordinary operation of a railroad-train over the plaintiff’s farm. Upon that question you are instructed that persons who own property adjoining or near a railroad are bound to take notice of the increased danger to their property from fire, and to exercise a proportionate amount of care to protect it ; and if the plaintiff in this case allowed dry grass and weeds and dry corn-stalks to remain on his premises adjoining the defendant’s right of way, so that the fire could readily start therein, then I instruct you that this is a circumstance for you to consider as tending to prove contributory negligence on the part of the plaintiff. But the question of contributory negligence, of course, is entirely for the jury to determine, from all the evidence in the case. If you find that, the plaintiff was guilty of contributory negligence but- for which the fire would not have caught, then he cannot recover in any event.”
In Ft. S. W. & W. Rly. Co. v. Tubbs, 47 Kan. 630, 28 Pac. 612, a fire case, it was held that an adjacent owner was entitled to use his land in the ordinary way, and was not chargeable with contributory negligence for the mere failure to take precautions against the negligence of the railway company, and in deciding the case the rule of liability stated by Mr. Chief Justice Agnew, of Pennsylvania, was quoted:
“The conclusion from the case is very clear that a*35 plaintiff is not responsible for the mere condition of his premises lying along a railroad, but in order to be held for contributory negligence must have done some act or omitted some duty, which is the proximate cause of his injury, concurring with the negligence of the company. Farmers may cultivate, use and possess their farms and improvements in the manner customary among farmers, and are not bound to use unusual means to guard against the negligence of the railroad company; indeed, are not bound to expect that the company will be guilty of negligence.” (Page 636. See, also, Phila. & Reading Railroad Co. v. Schultz, 93 Pa. St. 341; Patton v. The St. L. & S. F. Ry. Co., 87 Mo. 117, 56 Am. Rep. 446; Kendrick v. Towle, 60 Mich. 363, 27 N. W. 567, 1 Am. St. Rep. 526; Gulf, C. & S. F. Ry. Co. v. Johnson, 54 Fed. 474, 4 C. C. A. 447; New York, etc., Railroad Company v. Grossman, 17 Ind. App. 652, 46 N. E. 546; C., C., C. & St. L. Ry. Co. v. Stephens, 173 Ill. 430, 51 N. E. 69; The Chicago and, Erie Railroad Company v. Kern, 9 Ind. App. 505, 36 N. E. 381; The Pittsburgh, Cincinnati and St. Louis Railway Company v. Jones, 86 Ind. 496, 44 Am. Rep. 334; Strawboard Co. v. C. & A. R. R. Co., 177 Ill. 513, 53 N. E. 97; Kellogg v. The Chicago & Northwestern Railway Company, 26 Wis. 223, 7 Am. Rep. 69; 2 Thomp. Neg. §2314.)
If the plaintiff used his land for legitimate purposes, and in the manner usually followed by other farmers, he cannot be deprived of redress for injuries resulting from the negligence and wrong of another. Of course, this does not mean that a person can invite and increase peril or needlessly and recklessly put his property in a position of known danger and be free from fault. That is not the usual or reasonable method of farming, and therefore if it were shown that the owner needlessly stacked or stored combustible material unnecessarily close to a railroad, and perhaps if it appeared that he placed or permitted accumulations perilously close to the track, and contrary to the practical and customary method of farming in the country, it would be such evidence of contributory negligence as should be submitted to a jury. A landowner, of course, takes all the risks of losses resulting
Here, however, there was no piling up of dry grass, weeds, or corn-stalks — no accumulation of combustible rubbish unnecessarily close to the track, nor was there any attempt to show that the plaintiff’s methods of farming and caring for his fields were not in line with the common usage among the farmers of the country. In the absence of such testimony there was no occasion or excuse for submitting the question of plaintiff’s negligence to the jury.
It is equally clear that the instruction to the effect that the mere leaving of stalks and dry grass on the land where they grew should be treated as proof of ■contributory negligence was not a correct rule.
For the error in charging the jury the judgment is reversed and the cause remanded for a new trial.