St. Paul Fire & Marine Insurance v. Hines

Citations

• 110 Kan. 4
• 202 P. 582
• 1921 Kan. LEXIS 150

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Negligence — Fire from Engine — Property Destroyed — Contributory Negligence — Facts for Jury. The general rule is that the defense of contributory negligence presents an issue of fact for a jury and that it is their province to note the special circumstances and surroundings of each particular case and then say whether the conduct of the parties was such as would be expected of reasonable, prudent men binder a similar state of affairs.</p> <p>2. Same — Question of Contributory Negligence Not One of Law but of Fact. An open truck with an enclosed cab, the sides being made of slats from four to six inches apart, loaded with household goods wrapped with furniture pads made of cotton, stopped at a railway crossing for a train to pass. The persons in charge of the truck saw and heard sparks and cinders from the engine fall upon the truck in a shower like rain or hail and thought of the possibility of fire arising therefrom, but after the train passed, drove against-a strong wind for a quarter of a mile or more, when the contents of the truck were discovered to be on fire. By merely stepping out of the enclosed cab and making an examination before proceeding they could have discovered that the fire had started in the goods. Held, that the question of contributory negligence was not one of law, but of fact, for the reason that it does not appear that reasonable men, acting as the triers of fact, would find, without any reasonable probability of difference in their views, that the persons in charge of the truck knew .and appreciated the danger, or that ordinarily prudent men, under the same circumstances, would have acquired such knowledge and appreciation.</p> <p>3. Contributory Negligence — Instruction Not Misleading. An instruction respecting contributory negligence considered with other instructions and held not misleading.</p> <p>4. Action Against Director-general of Railroads — Damages by Fire — Attorney Fees Not Recoverable — Ques