161 Ky. 317
Court of Appeals of Kentucky.
Dec. 1, 1914.
ACTION: Reversed and remanded.

Appeal from Circuit Court, Knox County.
Action by Mossie Haggard against the Louisville & Nashville Railroad Company.
Judgment for plaintiff, and defendant appeals.

Mrs. Mossie Haggard lives in Knox county; her home being about a hundred feet from the track of the Louisville & Nashville Railroad Company. On November 4, 1912, she was confined to her bed by reason of the fact that she had given birth to a child 10 days before; on that day a fire started on the right of way of the railroad, near her house, and was carried by the wind towards her house, the wind blowing from the track in the direction of the house. There was a large amount of weeds and other inflammable material on part of the ground, and the flames ran about 10 or 15 feet high; although the fire did not reach the house, the sparks and heat from it were carried into the house, and Mrs. Haggard was suffocated by the smoke, and made sick from the hot air carried into her lungs. She brought this action against the railroad company to recover for her personal injury, and, a judgment for $900 having been rendered in her favor, the railroad company appeals.

No witness introduced on the trial saw the origin of the fire; one witness testified that he passed the place, and there was no evidence of fire at that time, but that on his return half or three-quarters of an hour afterwards, the fire was burning, and that a passenger train called "The Short Dog" passed there not over five or ten minutes before he saw the fire. The fire started on the right of way and burned from it to the adjoining property; this he concluded from the looks of things when he saw the fire which had then reached the adjoining property. It was a dry time. The railroad section hands had mowed the right of way about a month before, and had left the weeds and other things they cut lying on the right of way. The weeds were high, and there was a considerable amount of this dry material in which the fire started. All the witnesses introduced on the trial concurred in stating that the fire started on the right of way, although none of them saw it start there. Section 782, Ky. St., provides:
"All companies shall place in, on or around the tops of the chimneys of engines, a screen, fender, damper or other appliance, that will prevent, as far as possible, sparks of fire from escaping from such chimneys."

The plaintiff introduced no other evidence than that we have stated, and it is insisted that, having shown that the fire started on the right of way, soon after the passenger train passed, she made out a prima facie case of negligence on the part of the defendant. It is provided that the killing or injuring of cattle by the engines or cars of any railroad company shall be prima facie evidence of negligence on its part, but there is no such provision as to fires started by an engine or train. Section 782 only requires that such appliances be used as will prevent, as far as possible, sparks of fire from escaping, the statute thus recognizes the possibility of sparks escaping under any circumstances, and so it has been held that the railroad company is only required to provide the best and most effectual preventive of practical use known to science so as to prevent, as far as possible, injury being done.

In the absence of a statute, negligence is not presumed, and to make out a prima facie case, the plaintiff must introduce evidence of negligence on the part of the defendant. "Before liability can be fastened on the company for want of proper screens on its engines, or, because of their defective condition, there must be some evidence to show such want or defective condition, such as that an unusual quantity of live sparks were being emitted while the train was going at an ordinary rate of speed or the same engine started several successive fires on the same trip, or the like."

"It was necessary for plaintiffs to show facts from which it could be reasonably inferred that the fire was due to the negligence of the defendant. Having failed to do this, we conclude that the court erred in refusing defendant a peremptory instruction."

"Every company shall keep its right of way clear and free from weeds, high grass, and decayed timber, which, from their nature and condition, are combustible material, liable to take and communicate fire from passing trains to abutting or adjacent property."

The proof introduced by the plaintiff on the trial was sufficient to show a violation of this section and that by reason of it the fire occurred. But in the petition this ground of recovery was not set up. The petition charged simply negligence in not having the engine properly equipped with spark arresters. The circuit court for that reason did not give any instruction submitting this matter to the jury; this was proper, as the plaintiff must recover upon her pleading, and she cannot recover upon a state of facts not alleged, although shown to exist.

The plaintiff alleged in her petition, in substance, that the defendant, after it had notice of the fire and of the plaintiff's peril therefrom, failed to use proper care to put out the fire. But these facts make out no cause of action against the defendant. If the defendant's negligence started the fire, it was answerable for the injury the plaintiff sustained therefrom, whether it used proper care to put it out or not after it had notice of it. If the defendant negligently failed to put out the fire when it could have done so, this added nothing to its liability if it negligently started the fire. If it had not negligently started the fire, its failure to put it out imposed no liability upon it. The fire had burned beyond its premises before it had notice of it, and while it was under a moral duty to protect the property of its neighbors, its duty in this regard was the same as that of the other neighbors. All the evidence on this subject should have been excluded, as the defendant's liability turned simply on the question whether it negligently started the fire. We do not hold that a person may not be negligent in failing to take proper care to prevent a fire, originating on his premises, from spreading to the premises of another, although the fire may have been started by a stranger without any fault on his part. That is not this case, for here the fire, when discovered, had spread beyond the property of the railroad company, and if the company was negligent, it was liable in damages, although the fire went from its premises, first to the premises of another, and from there to the plaintiff's premises.

As the cause of action which was pleaded was not proved, and as the facts showing a right of action which were proved were not pleaded, the court should have instructed the jury to find for the defendant. But on the return of the case the plaintiff will be allowed to amend her petition and set up the facts showing a violation of section 790 as a ground of recovery.

This brings us to the vital question in the case. The defendant insists that there can be no recovery for the plaintiff's personal injury. It is insisted that the statute only intends to protect adjoining property, a person injured by the violation of any statute, may recover from the offender such damage as he may sustain, by reason of its violation; and, under this provision, we see no reason why one who sustains a personal injury by reason of a fire negligently started by a railroad company may not recover compensation therefor.

We do not see that there can be a substantial distinction taken between the cases where the person of the plaintiff is externally burned by the fire and those cases where the plaintiff is physically injured by being suffocated by the smoke, or the lungs are burned by the hot air. In either case there is a physical injury, one external, the other internal; but it is none the less a physical injury, because internal.

It is insisted that the damages are too remote; the defendant having no notice of the plaintiff's sickness or her infirm condition and therefore no reason to anticipate any such injury to her. "It is not material whether it was in the contemplation of the wrongdoers that loss of business or profit would result to the injured party. In actions for breach of contracts the rule generally held to is that only such damages can be recovered as are actually sustained, or such as it is reasonable to conclude were within the contemplation of the parties at the time the contract was entered into. But this measure that obtains in contracts will not be applied in actions sounding in tort. There is a wide difference between the rights and remedies allowable in the one case and in the other. It is the wrongful act done, and the consequences that naturally result from it, that the law looks at and holds the wrongdoer responsible for. A person who commits a tort like this is liable for all the damages that naturally flow from, and are the result of, this wrongful act, although he may not at the time have given any thought to or have anticipated that injurious consequences would follow. It is no excuse or defense for the wrongdoer that he did not mean to commit any wrong, or did not know that any injury or loss would ensue."

When the fire started on the defendant's right of way it naturally spread to the adjoining property, and the smoke and heat from it were then naturally carried into the plaintiff's residence. The defendant is answerable for this wrong although it did not know that any personal injury to the plaintiff would ensue from it. "When appellant's negligence obliged appellee to remain standing on the platform, exposed to the weather, it became responsible to her for all the injuries she sustained directly traceable to its negligence. It may be conceded that appellee's loss of health was much aggravated by the fact of her sickness, and that except for this sickness the exposure to the cold would not have affected her seriously, or have been especially harmful. Hence it is said for appellant that, as it could not have anticipated or known of appellee's condition, it should not be chargeable with the consequences that resulted from it. In other words, its claim is that the impairment of appellee's health was due, not to the obstruction that interfered with her going into the station, but to the fact that she was at the time sick. Upon this point we may say that if a person injured is feeble, sick, or diseased, and the negligence or wrongful act aggravates the illness or disease, or produces conditions that would not ordinarily or reasonably have existed or occurred except for the negligence or wrongful act, and are directly attributable to it, the injured party may recover all the damages that flow from the negligence or wrongful act, including such as result from illness, sickness, or disease aggravated by or that are produced by it, although the person inflicting the injury may not, at the time, know that the person injured is laboring under any infirmity, sickness, or disability."

That was all the testimony offered to show a permanent injury; no physician testified as to her condition, and no other witness was introduced to show that her health was permanently affected. The proof did not warrant a recovery for permanent injury.

Judgment reversed and cause remanded for further proceedings consistent herewith.

Ky.App. 1914.
170 S.W. 956, 161 Ky. 317