Big River Lead Co. v. St. Louis, I. M. & S. R. Co.

• Decision Date: 05 February 1907
• Citation: 101 S.W. 636,123 Mo. App. 394
• Court: Missouri Court of Appeals
• Parties: BIG RIVER LEAD CO. v. ST. LOUIS, I. M. & S. R. CO.

101 S.W. 636

123 Mo. A. 394

BIG RIVER LEAD CO. v. ST. LOUIS, I. M. & S. R. CO.

St. Louis Court of Appeals. Missouri.

February 5, 1907.

Rehearing Denied April 16, 1907.

1. RAILROADS—FIRES—EVIDENCE.

In an action against a railroad company for burning plaintiff's buildings by sparks from one of defendant's locomotives, evidence that witnesses had seen sparks from other locomotives fall further from the track than plaintiff's buildings, on other occasions, was admissible to show that defendant's locomotives uniformly threw sparks at the grade in question.

2. EVIDENCE—DOCUMENTARY EVIDENCE—DISPATCHER'S TRAIN SHEET—IDENTIFICATION.

Where, in an action against a railroad company for burning plaintiff's buildings the train dispatcher's train sheets, showing the movement of trains passing the buildings burned on the night in question, were identified and proved to have been kept in defendant's regular course of business, they were admissible.

3. RAILROADS—FIRES—EVIDENCE.

In an action against a railroad company for burning plaintiff's buildings, evidence held to warrant an inference that the fire originated from sparks emitted by one of defendant's locomotives.

4. SAME—INSTRUCTIONS—ORIGIN OF FIRE.

In an action against a railroad company for burning plaintiff's buildings, the court charged that in order for plaintiff to recover it must establish by the greater weight of evidence that one of defendant's engines passing the property on the night in question emitted fire, which was communicated to such property; that the verdict could not be founded on mere conjecture; and that the burden of proving the fact alleged by the greater weight of the evidence was on plaintiff, and, if the jury found that the circumstances were more consistent with the theory that the fire caught from some other source, plaintiff could not recover. Held, that such charges were proper.

5. TRIAL—INSTRUCTIONS—ISSUES.

An instruction that if plaintiff was the owner of the barn, contents, and hogpen mentioned in plaintiff's petition, and such property was destroyed by fire from one of defendant's engines, defendant was liable for the damage, regardless of whether it was negligent or not, was not objectionable as referring the jury to the petition for the issues.

6. RAILROADS—FIRES—ACTION—INSTRUCTIONS.

In an action against a railroad for destroying plaintiff's property by fire, the proof was conclusive that all the property sued for was destroyed, and there was evidence as to the value of every portion thereof. The verdict was for a round sum, instead of separate values for each article. Held, that an instruction that plaintiff's damage should be such as the jury believed the barns, their contents, and the hogpen destroyed were reasonably worth on the night of the fire, not exceeding the amount sued for, was not objectionable for failure to set out the different items of property.

Appeal from Circuit Court, Jefferson County; Jos. J. Williams, Judge.

Action by the Big River Lead Company against the St. Louis, Iron Mountain & Southern Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Jas. F. Green, for appellant. Jones & Been and H. B. Irwin, for respondent.

GOODE, J.

Plaintiff, an incorporated company, suffered a loss by fire November 21, 1903, and seeks compensation from the defendant on an averment that the fire was kindled by sparks emitted by one of defendant's locomotives. According to the statement of the petition, the property burned was: One barn of the value of $2,000; another barn of the value of $1,000; four mares, worth $650; two mules, worth $300; 2,000 bushels of corn, worth $900; 125 tons of hay, worth $1,250; 500 sacks, worth $25; 1,000 pounds of mixed feed, worth $900; 400 bushels of oats, worth $120; 5 sets of harness, worth $75; farm machinery, worth $100; and a hogpen, worth $50. The fire started after midnight and before 2 o'clock in the morning. One witness observed it at five minutes before 2 o'clock. It caught in the roof of the larger of the two barns, which is situate 223 feet from defendant's railroad. The different properties described in the petition were all consumed by the fire, and evidence was put in to prove they were of the values alleged. Three trains passed Irondale, the station where the fire occurred, on the night of its occurrence after midnight and prior to the discovery of the fire; but the engineers and firemen of the locomotives which drew those trains swore no sparks were thrown out by either of the engines while traveling along the Irondale grade. This grade is quite heavy. It begins to rise one mile and a quarter north of the station, and continues to ascend toward the south for six miles. The effect of the grade is to increase the difficulty of drawing trains over the track, and to draw them a strong head of steam is worked, causing the engine to throw coals and sparks to a considerable distance. Some witnesses said they had seen sparks from other locomotives fall further from the track than plaintiff's barns were. An exception was saved to the admission of this testimony, as it related to other times than the night of the fire, and the sparks were not shown to have been emitted by the engines which passed Irondale on said night. This point must be ruled against the defendant on the authority of Campbell v. R. R., 121 Mo. 340, 349, 25 S. W. 936, 25 L. R. A. 175, 42 Am. St. Rep. 530, and Mathews v. Railroad, 142 Mo. 645, 657, 44 S. W. 802. It is competent in actions like this to show the railway company's locomotives had thrown out sparks and cinders which fell further from the track than the burned property, and also that fires were started on other occasions by falling sparks at a greater distance than the plaintiff's property was. The reason for admitting such evidence was stated in Sheldon v. Railroad, 14 N. Y. 223, 67 Am. Dec. 155, an authority cited with approval in the foregoing decisions of our Supreme Court. The reason is that there is usually a uniformity of plan and construction in locomotives used by a railway company, so that, if some of them emit cinders, presumably the others do. If they differ in construction, and some are less likely to throw out fire than others, the company can prove these facts.

The court received in evidence a train sheet kept by the defendant company's chief train dispatcher at De Soto, and showing what trains passed through Irondale on the night in question. This document is said to have been inadmissible. The sheet was identified by the train dispatcher and proved to have been kept in defendant's regular course of business. We have no doubt it was competent evidence; but, if it was not, its admission did no harm, because the defendant proved the same facts by the crews of the engines attached to the trains which passed Irondale on the night in question. Counsel for defendant insist the evidence relied on to show the fire was kindled by one of the defendant's locomotives was insufficient to justify the submission of that issue to the jury, an assignment to which we have given patient study, because we are sensible that the evidence is circumstantial, and not as satisfactory as positive proof would be. But the question for our decision is: Was there any substantial evidence tending to prove the cause of the fire was a coal or cinder cast out by one of defendant's locomotives? In dealing with this question, we will state the evidence in the phase most favorable to plaintiff, as we are bound to do in view of the jury's right to accept some parts of the evidence as true in preference to other parts. The weather was dry and the night starlit, with a breeze floating from the east or southeast; that is, from the railroad track toward the barns. The railroad track at that point was on a high bank and nearly level with the eaves of the barns. We have stated that defendant's locomotives, in running up the Irondale grade, often threw out sparks and cinders. Witnesses swore to having seen them rise from 20 to 40 feet in the air, and that cinders had fallen still burning further away than plaintiff's property. When first discovered the fire was on the outside and about the middle of the roof of the larger barn, the one nearest the railroad track. At that time there was no fire inside the barn. No testimony was given which tended to show any other possible origin of the fire, except that two women, who were passing about half past 8 o'clock in the evening, swore they saw a dim light in the larger barn moving upward, as though a person with a match was climbing into the loft. But this hour was too long before the barn took fire for the light observed to be deemed the probable origin of the conflagration, and there was no other light about the barns on that night. At least one of the trains which passed after midnight was heavy and much steam had to be used to draw it up the grade. The fire was first seen about 1 o'clock, and the heaviest train had passed at 12:51 p. m., and the others at four minutes after 12, and five minutes after 12. One witness testified that prior to the fire in question, while standing in the barn lot and beyond the buildings, a cinder from a locomotive had fallen on his hand and burned him. This is a fair statement of the substance of the evidence relied on to prove the origin of the fire was burning matter emitted by one of defendant's locomotives. Was it sufficient to warrant the inference that such was its origin, the fact essential to plaintiff's recovery? The testimony that on other occasions hot coals or cinders had fallen as far from the railroad track as the barns, and about the barns, showed the possibility of the fire having been kindled by means of a hot coal from a locomotive. This point has been determined on great consideration by eminent courts and is now settled law. Railroad Co. v. Richardson, 91 U. S. 470, 23 L. Ed. 356, and other citations below in connection with it. We are cited to Coale...