Cincinnati, etc., Ry. Co. v. Caskey

to their aid in this respect to the injury of the citizenship of the state.

We are of opinion that the facts alleged in the petition do not show any right of action in the defendants in error as against the Railroad Commission, and that the court below erred in not sustaining the general demurrer to the petition. The allegations of the petition and the facts proved show that no better case can be made by an amendment of the petition; hence it would be useless to send this case back to the district court for further proceedings.

It is therefore ordered that the judgments of the district court and of the Court of Civil Appeals be reversed, and that the general demurrer of the Railroad Commission to the petition of the defendants in error be, and the same is hereby, sustained, that this case be dismissed, and that the defendants in error pay all cost.

CINCINNATI, N. O. & T. PAC. RY. Co. v. CASKEY.

(Court of Appeals of Kentucky, May 6, 1903.)

[74 S. W. Rep. 201.]

Railroads-Fires Along Right of Way-Negligence-Condition of Spark

Arrester-Evidence.

Though no recovery can be had against a railway company for the destruction of property by fire set by sparks from a passing engine if the engine was furnished with the best screens and spark arresters in use, which were in perfect order, nevertheless evidence showing that sparks and cinders escaped from the engine in unusual quantities is sufficient to warrant the assumption that the spark arrester was out of order or improperly adjusted, and that the railroad company was consequently guilty of negligence in this regard.

Appeal from Circuit Court, Boyle County.

"Not to be officially reported."

Action by J. W. Caskey against the Cincinnati, New Orleans & Texas Pacific Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

C. H. Rodes, for appellant.

Robt. Harding and Rawlings & Vories, for appellee. BARKER, J. This action was instituted by appellee, J. W. Caskey, in the Boyle circuit court, to recover damages against appellant, Cincinnati, New Orleans & Texas Pacific Railway Company for negligently setting fire to his house, whereby it and a large portion of his furniture and other personal effects therein, were burned. The evidence for appellee showed that his house was situated about 100 feet from appellant's line of railway, and on the

day of Febpassing of one

ruary, 1901, within 25 or 30 minutes after the of appellant's trains, the roof of the house was discovered to be on fire, and, those present not being able to extinguish the flames, it was in a short time entirely destroyed; that on the

Cincinnati, etc., Ry. Co. v. Caskey

day the fire occurred the weather was extremely dry, with a strong wind blowing from the direction of the line of railway towards the house; that, as the train passed, it was noticed that the smokestack of the engine was emitting dense clouds of smoke, and that cinders were escaping therefrom in such quantity and size that, when carried by the wind against the house of appellee, it sounded as if it was hailing, and that some of these cinders were as large as peas; that the fire originated at a point on the roof next the line of railroad; that it could not have originated from sparks coming from the chimneys of the house, the strong wind blowing from the direction of the railroad excluding this as a possibility; that the fires in the grates within the house were all down very low and throwing out no sparks at the time, and there were no other files in the neighborhood, except that in the engine of appellant's train, from which the conflagration which destroyed appellee's house could have originated. The answer of appellant put in issue the allegations of negligence contained in the petition, and its evidence conduces to show that the smokestack of the engine in question was furnished with a spark arrester of the most improved pattern known to science; that it was properly adjusted at the time; that the train was a light one, and not going at an unusual rate of speed. The jury, under the instructions of the court, returned a verdict in favor of appellee for the sum of $900. Appellant complains on this appeal of no technical error occurring during the trial, but bases its claim to a reversal solely upon the want of merit in appellee's cause of action. In other words, it complains only of the court's refusal to peremptorily instruct the jury to find for it after all the evidence was in. In the case of L. & N. R. Co. v. Samuel's Ex'ors (Ky.) 57 S. W. 235, it is said: "The law is well settled in this state that a railroad company, authorized by its charter to use steam power, has necessarily the right to use fire as a means of generating steam; and it is not liable for injuries resulting from the sparks escaping from its locomotive if it was furnished at the time with the best and most improved screen and spark arrester in practical use, when these appliances are in perfect order, if not otherwise guilty of negligence in the operation of its engine. But it is equally well settled that in an action against a railroad company to recover for loss by fire alleged to have resulted from negligence in operation, or for failure to have the spark arrester in proper condition, the testimony showing that sparks and cinders escaped from the locomotive in unusual quantities was competent, and will of itself warrant the assumption that the arrester was out of order or was improperly adjusted, and that the defendant was consequently guilty of negligence in this regard." This case was approved in Illinois Central Railroad Company v. Scheible, 72 S. W. 325, in an opinion which reviewed all of the cases decided by this court on the subject of

Carrier v. Missouri Pac. Ry. Co

the negligence of railroad companies in the use and management of spark arresters, whereby fires were caused to adjacent property. Undoubtedly the evidence of appellant strongly conduces to show that it was not guilty of the negligence charged by appellee; but, on the other hand, the evidence of appellee was such, in our opinion, as created an issue of fact which was peculiarly within the province of the jury to determine, and, as they determined it adversely to appellant, we are not able to say that their verdict was flagrantly against the weight of the evidence.

Wherefore the judgment is affirmed.

CARRIER V. MISSOURI PAC. RY. Co.

(Supreme Court of Missouri, Division No. 2, May 19, 1903.)

[74 S. W. Rep. 1002.]

Costs Discretion of Court.

Where plaintiff has brought suit, and, after the issues have been made up and costs have accumulated, has taken a nonsuit, it is in the discretion of the court whether it will restrain her from bringing another action on the same cause without first paying the accrued costs in the original action.

Same-Security-In Forma Pauperis.

Rev. St. 1899, § 1542, provides that in all civil cases commenced by a nonresident the plaintiff "shall," before the institution of the suit, file a cost bond, and that the court "may" dismiss any action so commenced by a nonresident without the filing of the bond. Section 1545 provides that the court "may, in its discretion," permit a plaintiff who is unable to pay the costs to prosecute his action as a poor person, etc.: held not error, after requiring a nonresident plaintiff to give security for costs, to permit her to sue as a poor person.

Injury to Trespasser-Contributory Negligence-Deafness.

Deceased was struck by a train while trespassing on the right of way, and killed. The dirt road running alongside the right of way was muddy, and he was walking either on the path, a few feet wide, running between the track and a ditch, or on the track. The accident occurred in the daytime, and, if deceased had looked behind him, he could have seen the train for a distance of 400 yards. The track was fenced, and there was no crossing at the place where deceased was found. Deceased was hard of hearing, but could hear loud sharp noises. No signal of any kind was given by the train crew, but the train, moving at usual speed, on schedule time, made a heavy rumbling noise: held, that deceased was guilty of contributory negligence. Same-Care Due from Railroad-Lookouts-Negligence and Contributory Negligence.*

Deceased was struck by a train while trespassing on the right of way, and killed. He was in plain view for 400 yards before the accident, but there was no evidence that any member of the train crew saw him. There was no crossing where the accident occurred, and only one house in the vicinity, and the right of way was fenced on each side. The train was run on schedule time, at the usual speed, and on an upgrade, so as to make a heavy rumbling noise. No signals of any kind were given as a warning by the crew: held that, they being

*As to the duty owing to trespassers on track, see foot-note appended to Vanarsdell's Adm'r v. Louisville & N. R. Co. (Ky.), 1 R. R. R. 61, 24 Am. & Eng. R. Cas., N. S., 61.

Carrier v. Missouri Pac. Ry. Co

under no legal duty to be on the watch for trespassers, they were not guilty of such wanton negligence as to justify a verdict in spite of decedent's contributory negligence.

Same-Right to Presume That Person Seen on Track Will Avoid Train.t

If the deceased was seen by the crew within the line of danger, they had a right to presume that he would be on the lookout for the train, and would step out of its way as it approached him.

Appeal from Circuit Court, Johnson County; Samuel Davis, Special Judge.

Action by Susan P. Carrier against the Missouri Pacific Railway Company. From a judgment in favor of plaintiff, Reversed.

defendant appeals.

R. T. Railey, for appellant.

O. L. Houts, for respondent.

BURGESS, J. This is an action by plaintiff, the widow of T. E. Carrier, deceased, to recover from defendant $5,000 damages for negligently and carelessly killing her husband on the 15th day of January, 1899.

The petition alleges that on said date defendant was operating a line of railway through the city of Warrensburg, county of Johnson, and that on said 15th day of January, 1899, and for a long time prior thereto, defendant's railway and track in said city and extending for a long distance west thereof was and had been used by persons and the public as a traveled way; that on said 15th day of January the said T. E. Carrier was upon defendant's track and right of way west of the city limits of said city, and where the said track and right of way was used as a traveled way as aforesaid, walking and traveling to the said city, and an engine and train of cars owned and operated by the defendant, going east, and called train "No. 2," approached the said T. E. Carrier from the rear along said track, and he became and was in great danger and imminent peril of being run over, killed, and injured by said train; that defendant, its officers, servants, agents, and employees running, conducting, operating, and managing said train, saw the said T. E. Carrier and his said peril and danger, and became aware thereof in time by the exercise of ordinary care to have stopped said train and averted any injury to him, and by the exercise of ordinary care could have seen him and become aware of his said peril and danger in time to have stopped said train and prevented his injury; that, after seeing the said T. E. Carrier, and becoming aware of his said peril and danger, and after they could have seen him and become aware of his said peril and danger by the exercise of ordinary care as aforesaid, the said defendant, its said officers, servants, agents, and employees, negligently and carelessly failed to sound the usual and ordinary danger signals, and failed to sound them in time to avert the injury to said T. E.

See foot-note p. 650, appended to Humphrey's Adm'x v. Valley R. Co. (Va.), 5 R. R. R. 649, 28 Am. & Eng. R. Cas., N. S., 649.

Carrier v. Missouri Pac. Ry. Co

Carrier, and negligently and carelessly neglected to use air brakes and other appliances for stopping said train, and negligently failed to use the appliances at hand and provided for putting said train under control, but negligently and carelessly ran said engine and train upon and over the said T. E. Carrier, and injured and killed him at the time and place aforesaid, to the damage of the plaintiff in the sum of $5,000, for which she prays judgment, with costs. The defenses were general denial, contributory negligence in illegally, wrongfully and without authority of law, while deaf and dumb, and going upon defendant's right of way, and while not paying any attention to the operation and running of defendant's train, and by his negligence and carelessness, and without fault of the defendant, going upon its track, and receiving the injuries complained of; that defendant had no knowledge of the fact that said deceased was either deaf or dumb or on said premises. Plaintiff replied, admitting that deceased, T. E. Carrier, went upon defendant's right of way, stepped near its track; that he also stepped and went upon defendant's track; and stating that he received the injuries complained of when near or upon said track, and admitting that defendant did not know the deceased was deaf or dumb, and averring that he was neither deaf nor dumb. All other allegations in the answer are denied. The trial resulted in a verdict and judgment in favor of plaintiff for $5,000, from which defendant appeals.

It appears from the record that plaintiff brought suit to the June term, 1899, of the circuit court of Johnson county upon this same cause of action, and that, after that issue had been made up and a large amount of costs had accumulated, and the case brought to trial before the court and a jury, plaintiff took a nonsuit, and thereafter instituted this suit on the same cause of action, without having paid the cost, or any part of it, which accumulated in the former suit. After the institution of the suit at bar defendant filed its motion to restrain plaintiff from the prosecution of this suit until the costs of the former suit were paid, and to require her to give security for the costs of this suit. In the meantime plaintiff had become, and was at the time of the institution of this suit, a nonresident of this state, and a resident of the state of Kansas. The motion to restrain, or that part of the motion that asked the court to restrain, the plaintiff from prosecuting this action, was overruled, that part of the motion to require plaintiff to give security for cost sustained, and plaintiff allowed to sue as a poor person.

On Sunday morning, January 15, 1899, T. E. Carrier started to walk from Centerview, which is six miles west of Warrensburg, Johnson county, on the line of the Missouri Pacific Railway, to Warrensburg. The dirt road being muddy, he started out on the railroad track, and when nearing Warrensburg he was struck and fatally injured by one of defendant's regular passenger trains, which arrived at that place from the west