Funk v. Quincy, Omaha & Kansas City Railroad Company

• Decision Date: 19 February 1907
• Parties: FUNK, Respondent, v. QUINCY, OMAHA & KANSAS CITY RAILROAD COMPANY, Appellant
• Court: Missouri Court of Appeals

100 S.W. 504

123 Mo.App. 169

FUNK, Respondent, v. QUINCY, OMAHA & KANSAS CITY RAILROAD COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

February 19, 1907

Appeal from Knox Circuit Court.--Hon. Charles D. Stewart, Judge.

REVERSED.

Judgment reversed.

O. D Jones and J. G. Trimble for appellant.

There was, in fact, no evidence to show that one of defendant's engines caused the fire. If the fire is discovered immediately after the passing of an engine, it has been held presumptive evidence if the fire caught in combustible matter on or near the right of way. That Otis Co. v Railroad, 112 Mo. 630.

F. H McCullough and C. R. Fowler for respondent.

The facts, according to decisions in this State, made a prima facie case for the jury. Kenny v. Railroad, 70 Mo. 252; Rebman v. Railroad, 76 Mo. 550; Sappington v. Railroad, 14 Mo.App. 86; Wright v. Railroad, 107 Mo.App. 209.

OPINION

GOODE, J.

Plaintiff is the owner of eighty acres of land which is bisected by defendant's railroad so as to leave forty acres on either side of the railroad. The longest dimension of the tract is north and south and, as we understand, the railroad runs through the center of it on an east and west line. A fire occurred on the south forty acres, which is a meadow. The date of the fire was October 4, 1904. The meadow had been cut July 8th and the tract was in pasture. Plaintiff seeks judgment for damage done to the meadow by burning the grass roots and killing the grass, for the value of some stacked hay which was consumed, and the value of manure which had been spread over eight acres. The action must fail because there is no proof that the fire was set by one of defendant's locomotives, as alleged. The evidence relied on to prove this fact is the testimony of plaintiff's son which, as to the immediate point was, in substance, as follows: In the morning of the day of the fire the witness went to Hurdland to attend to selling some personal property. Hurdland was a nearby town, we suppose, though the fact is not stated. When he came back about five o'clock in the afternoon, the meadow had been burned over, but was still smoking and the fire appeared to have burned from the direction of the railroad. When questioned as to whether he had observed the fire earlier in the day, he said he had seen smoke before that; probably about nine or ten o'clock in the morning; but on cross-examination stated that he could not tell whether it was on his father's place or not, but thought it was. He said a train ran along the railroad track that day, passing him while he was on his way to Hurdland. The witness did not say whether he saw the smoke before or at the time, or after this train passed;...