Kansas City, Fort Scott & Memphis Railroad v. B. F. Blaker & Co.

Citations

• 68 Kan. 244
• 75 P. 71
• 1904 Kan. LEXIS 95

Syllabus

<p>SYLLABUS BY THE COUKT.</p> <p>1. Fikb Insurance — ’Action for Damages by Insured against Third Party. Where an insurance company pays to the insured a loss occasioned by the wrong of a third party, and the value of the property destroyed exceeds the amount paid by the insurance company, the insured may bring an action in his own name against . the wrong-doer and may recover the full amount of the loss.</p> <p>2. Railroads — Property on Bight of Way — Liability of Railroad for Destroying Adjoining Property. A dealer in grain and lumber leased a portion of the right of way of a railroad company on which to build an elevator and warehouses, and it was stipulated that the railroad company should not be liable for the burning of property erected or stored on the rented premises. The lessee had other property connected with that on the leased premises, which was destroyed by fire negligently set out by the railroad company on the rented premises and which continued from there and burned property not on the right of way. Held, that the fact that the railroad company was exempt from liability for the burning of the property on the right of way, which first caught fire, will not relieve it from liability for the negligent burning of the connected property.</p> <p>3. -Acts of Lessee Held Not to Constitute Contributory . Negligence. The placing of structures on the right of way of a railroad company, which are permitted to remain there with the consent of the company until they are negligently set on fire by a passing locomotive, which fire extends to and burns other and adjoining property, does not constitute contributory negligence on the part of the owner, nor deprive him of the remedy given by law for the negligent burning of property not on the right of way,</p> <p>4. - Circumstantial Evidence — Case Followed. The fact that a fire which destroyed property originated in sparks from a passing locomotive may be shown by circumstantial evidence, following the rule of Eailr