Viera v. Atchison, Topeka & Santa Fe Railway Co.

Negligence of Railway Company—Fire Originating in Dry Grass on Right of Way—Destruction of Plaintiff’s Property— Sparks from Locomotive—Evidence—Province of Jury.—In an action to recover the value of seventy-four cords of plaintiff’s stove-wood destroyed hy fire alleged to have had its origin from sparks from defendant’s locomotive falling on dry grass negligently allowed to accumulate upon its right of way, and to extend to plaintiff’s property, the jury, in .finding a verdict for the plaintiff, had the right, within its province, to make all reasonable inferences of fact from the evidence in the light of common knowledge, and though the sparks from the locomotive were not seen to fall upon the grass, the jury could infer from evidence that the dry grass was seen on fire upon the right of way immediately after the passage of the train, and that the wind was blowing directly toward plaintiff’s land, and it extended thereto, to plaintiff’s loss, that the fire had its origin from sparks which issued from defendant’s locomotive.

Id.—Burden of Proof of Negligence—Degree of Proof—Sufficiency of Proof.-—Though the burden of proof is upon the plaintiff to show the negligence of the defendant, it need only be proved by a preponderance of the evidence sufficient to satisfy the minds of the jury as reasonable men. Held, that the evidence is sufficient to justify the jury in finding that the fire was caused by defendant’s passing engine.

Id.—Negligence in Sparks from Engine on Dry Grass.—To allow sparks to escape from an engine in full blast, and to allow dry grass on its right of way, on which the sparks would fall and kindle a fire, are sufficient facts from which to infer negligence, and to overcome evidence that the engine was thoroughly equipped with proper apparatus to prevent the escape of sparks.

Id.—Instruction as to Contributory Negligence of Plaintiff— Modification—Agents and Employees—Duty of Defendant.— Where a proper instruction was given upon the subject of the contributory negligence of the plaintiff, if the defendant wished it modified so as to include the agents and employees of the plaintiff, it was its duty to request such modification.

Id.—Objection upon Appeal for First Time.—It cannot be objected upon appeal for the first time that an instruction which was correct in general should have been more explicit and specific as to some particular theory claimed by appellant.