Commonwealth v. C. B. Cook Co. tinuous one and therefore the matter contained therein attempting to allege continuous prosecution is surplusage. 3. The appellee's plea of former acquittal by reason of the sustaining of a demurrer to a former indictment for the same offense was properly sustained by the lower court; but the record of that trial not being complete here, this court will indulge the presumption that the omitted portions of the record referred to in the indictment would sustain the ruling of the court. JUDGE DURELLE DELIVERED THE OPINION OF THE COURT. The facts in this case are the same as those in the case of Commonwealth v. The G. W. Taylor Co., this day decided, except that the offense of keeping, maintaining, suffering and permitting a nuisance is alleged in the indictment to have been committed "on the day of February, 1896, and before the finding of this indictment." It is objected to the sufficiency of this indictment that there is no averment that the offense was committed within twelve months before the finding of the indictment. This court has recently held, in the case of Stamper v. Commonwealth, ante, 33, that the averment mentioned was unnecessary, providing the date alleged for the commission of the offense was within twelve months before the finding of the indictment. It was, therefore, not necessary to the sufficiency of the indictment to make averments showing that this indictment was a continuation of a previous prosecution not barred by the statute. The question, therefore, arises whether the plea of former acquittal is sufficient. That plea simply avers that upon a former indictment for the same offense a judgment was rendered reciting that the defendant had demurred to the indictment; that the demurrer had been sustained and the indictment dismissed, and that the indictment now under consideration was found upon L. & N. R. R. Co. v. Dalton. the same facts and for the same offense charged in the one We do not think this is a sufficient plea in bar. The 102 290 108 367 102 290, el16 317 102 290 e116 317 102 290 122 399 CASE 46-PETITION ORDINARY-NOVEMBER 24. Louisville & Nashville Railroad Co. v. Dalton. APPEAL FROM CHRISTIAN CIRCUIT COURT. 1. RAILROADS-FIRES CAUSED BY LOCOMOTIVES-INSTRUCTIONS.-In 1 L. & N. R. R. Co. v. Dalton. 2. EVIDENCE.-In such an action where the fire was within the limits of a city, an ordinance of the city regulating the speed of trains therein was inadmissible to show that the speed of the train exceeded the lawful rate. JOE MCCARROLL FOR APPELLANT. 1. The screen and spark-arrester are not required to be such as will absolutely under all circumstances prevent the escaping of sparks. Kentucky Statutes, sec. 782; K. C. R. R. Co. v. Barrow, 6 Ky. Law Rep., 242; K. C. R. R. Co. v. Threlkeld, 10 Ky Law Rep., 323; L. & N. R. R. Co. v. Taylor, 13 Ky. Law Rep., 374; N. N. & M. V. R. R. Co. v. Terry, 16 Ky. Law Rep., 316; L. &. N. R. R. Co. v. Mitchell, 17 Ky. Law Rep., 977. 2. The speed of a train is never an element of negligence except when it affects the safety of persons or property in some legal sense under the special care of the railroad; and it was improper to permit the ordinance fixing the rate of speed of trains to be read in evidence; that was merely a police regulation and did not enter into the question of negligence. E. L. & B. S. R. R. Co. v. Bean, 10 Ky. Law Rep., 682. PETREE & DOWNER FOR APPELLEE. 1. If there was any connection at all between the rapid speed of the locomotive and the throwing of the sparks, the evidence as to the speed of the train was certainly competent. 2. The evidence as to the speed of the train being proper, appellant could not have been prejudiced by the reading of the ordinance to the jury. JUDGE HAZELRIGG delivered THE OPINION OF THE COURT. The chief instruction to the jury presents the nature of the case before us on this appeal. It in substance told them that if the plaintiff's building and its contents were set on fire by sparks from the company's engine, and that the engine at the time was not provided with the best and most approved screen or spark arrester known to science and in practical use, the same being in good order and properly adjusted, they were to find for the plaintiff; and they were to so find even if such screen and spark arrester were attached to the engine and in proper condition, if they further be L. & N. R. R. Co. v. Dalton. lieved that the engine and train were handled and managed by the defendant's employes in such a negligent manner as that sparks escaped therefrom and ignited the building. From the proof it is clearly inferable that the building was fired by sparks from the company's engine, but it is also clear from the uncontradicted proof that the engine, in conformity with the requirements of our statute (section 782 Kentucky Statutes), was furnished at the time with the best and most approved screen and spark arrester in practical use, and that these appliances were in perfect order, notwithstanding which sparks escaped, as it is shown they will sometimes do in spite of all effort to prevent it. Under these circumstances this court has held, and likewise the courts of every State where the liability of the company is not made absolute by statute, that railroad companies are not required to provide appliances that will effectually and certainly, under every condition, prevent the escape of sparks of fire from the chimneys of their locomotives, but only to provide and use the best and most effectual preventive known to science, so as to prevent, as far as possible, injury being done. (Ky. Cen. R. R. Co. v. Barrow, 89 Ky., 638; L. & N. R. R. Co. v. Taylor, 92 Ky., 55; L. & N. R. R. Co. v. Mitchell, 17 Ky. Law Rep., 977.) 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. In the L. & N. R. R. Co. v. Dalton. case before us there is no evidence or circumstance of this character to rebut the testimony of a number of witnesses for the company who testify as to the perfect condition of the appliances, after a thorough examination immediately after the fire. In the absence of evidence to the contrary the jury were not at liberty to reject the evidence of these witnesses, and this branch of the case may, therefore, be regarded as having been concluded by the proof. However, whether there was negligent management of the engine and train at the time of the fire is a disputed question. There was a big grade in front of the building consumed and the proof of the plaintiff was directed toward showing that the sparks escaped in switching, because a heavy train was being kicked up grade at the rate of some twenty-five miles per hour within the city limits, instead of which the cars should have been pushed up more slowly; that the engine "labored hard" and increased its speed rapidly to give a momentum to the cars kicked in on the switch and up the grade, so they would roll on over, etc. The company's witnesses testified that there was nothing unusual in this, and the operation of the engine was entirely prudent under the circumstances. This question as to "whether or not a company is guilty of negligence in managing and operating its locomotives is, as a rule, but not always, a question of fact to be determined by a jury" (3 Elliot, 1225). Here there is no doubt but that the jury is to decide this question under proper instructions and after hearing such competent proof as may be offered. The instruction on the point involved was clearly right, and we are brought to the single serious question in the |