Clark v. Kansas City, Ft. S. & M. R. Co.

Citations

• 129 F. 341
• 64 C.C.A. 19
• 1904 U.S. App. LEXIS 4052

Syllabus

<p>L Railroads — Fires—Statutes—Application.</p> <p>Sand. & H. Dig. Ark. § 7362, providing that any person who shall set on fire any grass or other combustible material within his inclosures, so as to damage any other person, shall make satisfaction in single damages to the party injured, etc., has no application to an action for the destruction of a warehouse near a railroad right of way from fire set out by members of a track crew on the right of way.</p> <p>2. Same — Federal Courts — Contributory Negligence — Burden op Proof.</p> <p>In the federal courts the burden of proof of plaintiff’s contributory negligence, alleged as a defense, is on the defendant</p> <p>3. Same — Evidence.</p> <p>Plaintiff owned a warehouse near a railroad right of way, constructed of planks, with an iron roof, and inclosed by a picket fence. On a certain Sunday, certain track crews living in “camp cars,” and stationed near the warehouse, maintained fires on the right of way during the day for the purpose of washing their clothes; and during the forenoon plaintiff’s agent called the attention of defendant’s station agent to the fires, and the danger to plaintiff’s property. One of the fires was within 40 feet of the warehouse, and another about 140 feet away, with the wind blowing in the direction of the warehouse at a velocity of 15 miles per hour. After the warehouse and fence had been closed and locked for the night, the building was set on fire by sparks and destroyed. Held, that plaintiff was not guilty of contributory negligence, as a matter of law, precluding him from recovéring against the railroad company.</p>