Rabbermann v. Callaway

Mr. Presiding Justice Green delivered the opinion of the Court. This suit was brought before a justice of the peace by appellant to recover damages for killing of two hogs and for damage by fire to an apple tree growing on his land. The trial before the justice resulted in a judgment for appellant, and appellee took an appeal to the County Court, where there was a verdict and judgment for defendant, to reverse which plaintiff took this appeal. The 11th instruction given for defendant ivas erroneous and misleading. By it the jury were told that if the animal in question entered upon defendant’s right of way because of the defective condition of the fence, and was killed, the plaintiff could not recover, “ if it further appears the plaintiff was guilty of contributory negligence, as compared with the negligence of the defendant.” If the contributory negligence did not tend to cause the injury, it would not relieve the defendant from liability, and this instruction does not in any way connect the contributory negligence with causing the injury. The 13th instruction for defendant was erroneous in informing the jury the plaintiff could not recover damages to the tree of plaintiff, if the sparks from defendant’s engine sec fire to the grass, weeds and other dangerous combustible material on the right of way, and that such fire burned and scorched the limbs of said trees so extending over the right of way. Such is not the law. The 14th of defendant’s instructions informed the jury, if it appears from the evidence that the trees in question were planted by plaintiff or his predecessors in title, on or near the line of the right of way, after such right of way had been, acquired by defendant, or its predecessors in title, then the plaintiff and his predecessors will be presumed to have assumed all the risks of damage by fire caused by a proper operation of the company’s railroad, and if the damages to the trees in this case were so caused, the plaintiff can not recover. There was no evidence that the damage to trees was caused by proper operation of defendant’s railroad, and hence no evidence appears upon which to base this instruction. The 15th instruction given for defendant informs the jury of the duty of railroad companies to keep their right of way free and clear from all dead grass, dry weeds, and other dangerous and combustible material, and then says if it appears from the evidence that defendant, for the purpose of complying with this requirement of the law, set fire to dead grass, dry weeds, and other dangerous and combustible material on its right of way, then plaintiff could not recover for damage to his trees caused by fire so set. This instruction, like the 14th, was not supported by any evidence tending to show the fire was set by defendant for any such purpose as therein stated, and it was error to give it. The 16th instruction is also erroneous in instructing the jury that plaintiff is not entitled to recover any damage for injury to the apple trees caused by fire escaping from the engines of defendant, and setting on fire the combustible material on the right of way, or caused by the defendant burning off such combustible material, if such fire, without negligence of defendant, burned and scorched the said trees and limbs thereof hanging over the right of way of the defendant. If the tree of plaintiff was damaged by firing of combustible material on the right of way, caused by fire escaping from defendant’s engine, plaintiff would have the right to recover for such damage so caused. The fact that the same fire may have scorched the tree and limbs thereof, hanging over the right of way, would not absolve defendant. from liability for its negligence so causing the fire and damage. For the error in giving the said instructions, the judgment is reversed and cause remanded.