St. Louis & San Francisco Railway Co. v. Ludlum

Citations

• 63 Kan. 719
• 66 P. 1045
• 1901 Kan. LEXIS 216

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Railroads — Injury by Fire — Amendment of Petition. In ' an action to recover damages resulting from fire, where it is alleged in the petition “that it was communicated from one of the defendant’s engines to the grass growing along, upon and near to the track of defendant railroad company, by reason of the carelessness and negligence of the employees of said defendant in the care of said engine, and also on account of the careless, negligent and imperfect construction of said engine and smoke-stack and fire-pans belonging thereto,” it is not error for the court to allow plaintiff, more than seven years after the original petition was filed, to amend his petition by adding “that the defendant was guilty of negligence in permitting dry grass, weeds, leaves and vegetation to accumulate and remain upon the right of way of said defendant where said fire mentioned in plaintiff’s original petition was set out, and that said fire was communicated to said dry grass, weeds, leaves and vegetation on said right of way by reason of the negligence of the defendant as alleged in the original petition.” This amendment does [not constitute a separate and distinct cause of action.</p> <p>2. -Care of Right of Way — Duty of Company. It is the duty of a railroad company to keep its right of way free from dry grass, weeds and other combustible material; in order that fire may not be set out on its right of way; and, if it negligently permits dry grass, weeds, leaves or other comb ustible ^material to accumulate and remain on its right of way, and the same take • fire from one of its passing engines, and the fire is communicated to an adjoining farm, where it destroys the property of the owner, without negligence on his part, such railroad company is liable.</p> <p>3. - Recovery of Attorney's Fee. ^ Our statute provides that, in actions to recover damages caused by fire negligently set out by a railroad company, the party damaged may recover a reasonabl