Missouri Pacific Railway Co. v. Cornell

The opinion of the court was delivered by Horton, C. J.: The principal question in this case is, whether .there was any evidence introduced upon the trial tending to show that the plaintiff below was guilty of contributory negligence. The evidence disclosed, inter alia, that plaintiff’s orchard, where his apple trees were standing, was situate adjoining the right-of-way of the railroad company, about one half-mile eastwardly of Westphalia station, in Anderson county; that on the morning of the fire (September 17,1881), before twelve o’clock m., two trains passed westwardly on the railroad by the orchard; that one of these was a passenger train and the other a freight train; that the fire started from red-hot coals or cinders about as large as walnuts, on the railroad between the rails, or from a little pile of cinders eight or ten feet outside of the rails; that at the time of the fire the weather and- vegetation were dry, and a high wind was prevailing; that the trees in the orchard were all heavily mulched. Some of the witnesses testified that eight or ten bucketfuls of manure were around each tree, and also that many of the trees were wrapped with grass, straw, and stalks; that some of the mulching was put around the trees in the spring of 1880, some in the winter of 1881, and some about two weeks before the fire; that the orchard was covered with old grass [39] and .corn stalks which had probably grown there the year before, and that there was a heavy coating of old vegetation between the trees; that the fire ran through the grass and dead weeds on the right-of-way to the orchard, and through the orchard to the mulching and dry material around the trees; that the fire scorched the trees, and killed forty or more of them; that it also got into the manure and dry material around the trees, and burned a considerable time; that the fire was burning in the mulching around the trees over two days. Among other instructions prayed for, the railway company asked the court to charge the jury that if plaintiff below was guilty of contributory negligence, contributing directly to the injuries complained of, he could not recover. This instruction and all other instructions directing the attention of the jury to consider the contributory negligence of plaintiff below, were refused. If there was any evidence upon which to base these instructions, the court committed error, because in its general charge it wholly ignored the matter of contributory negligence; Whether a party is. guilty of negligence, or not, is a question of fact for the jury, and not a question of law for the court to decide, when the evidence tends to establish such negligence. In view of the evidence of the manner in which the trees in the orchard were wrapped, of the character of the mulching thrown around them, and of the old grass and corn stalks left in the orchard, the question whether the plaintiff below was guilty of negligence, or not, should have been submitted to the jury. It is apparent from the findings, that the jury returned the verdict against the railway company mainly because the company had not kept its track and contiguous land free from weeds, grass and other material likely to be ignited by coals dropped or thrown from its engines. But if the plaintiff below was equally guilty in failing to use reasonable means to avoid the destruction of his property, 'his failure to do so would also be negligence; and if he were thus guilty of like [40] negligence with the railway company, he could not recover. (Railway Co. v. Brady, 17 Kas. 380.) Counsel of plaintiff below alleges that the instructions upon the question of contributory negligence are confined solely to the mulching of the trees, and then argues that as the plaintiff used his land in a natural and proper way for the purposes for which it was adapted, there was no evidence tending to show negligence on his part. Counsel misinterprets the record. Some of the instructions refused were as follows: “9. If the jury find from the evidence that the plaintiff placed a large amount of straw and other dry and inflammable material about his apple trees and permitted such material to remain about his trees, and knew that the railroad track was near, and that defendant’s trains were passing over its road every few hours, and knew that his orchard was so near the-track as to be exposed to great danger from fire in consequence of this inflammable material placed there by plaintiff; and if said dry straw and other inflammable material contributed directly to such injuries, then the plaintiff cannot recover in this action. “ 10. The plaintiff cannot recover for property negligently burned by defendant, if his o^yn negligence contributed directly to the injury. “11. It is a circumstance the jury may consider as going to prove contributory negligence, that plaintiff placed straw and other dry and combustible material around his apple trees and permitted it to remain around them for a long time, and up to and at the time of such injury, with a full knowledge that the railroad was within a few rods of his trees, and that his orchard in that condition was greatly exposed to injury by the escape of sparks from the passing engines on the track of defendant’s road.” We do not in any way intend to intimate that the mulching and wrapping by plaintiff below of his apple trees, or his failure to remove from the orchard the old grass and corn stalks, was per se and as a matter of law, negligence. But upon the introduction of evidence tending to prove these facts, a question of contributory negligence was thereby presented, and this question of fact was for the jury to decide. [41] The other alleged errors are such as are not likely to occur upon another trial, and therefore need not be commented upon. The judgment of the district court will be reversed, and the cause remanded. All the Justices concurring.