Tapley v. St. Louis & Hannibal Railway Co.
| Decision Date | 04 February 1908 |
| Citation | 107 S.W. 470,129 Mo.App. 88 |
| Parties | TAPLEY, Respondent, v. ST. LOUIS & HANNIBAL RAILWAY COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Pike Circuit Court.--Hon. David H. Eby, Judge.
AFFIRMED.
Judgment affirmed.
Geo. A Mahan and J. D. Hostetter for appellant.
There was not sufficient evidence to establish the fact that fire from defendant's engine ignited the depot from which the plaintiff's barn caught fire, and the court should have sustained the instruction offered by defendant at the close of all the testimony in the nature of a demurrer to the evidence. Gibbs v. Railroad, 104 Mo.App. 276; Wright v. Railroad, 107 Mo.App. 209; Peffer v Railroad, 98 Mo.App. 291; Peck v. Railroad, 31 Mo.App. 123; Moor v. Railroad, 28 Mo.App. 622.
John S Fitzgerrell and I. C. Dempsey for respondent.
There was sufficient evidence to sustain the finding that fire from appellant's engine ignited its depot and that respondent's property was destroyed in consequence. Torpey v. Railroad, 64 Mo.App. 382; Voegeli v. Marble & Granite Co., 56 Mo.App. 678; Fields v. Railroad, 113 Mo.App. 642; Lead Co. v. Railroad, 123 Mo.App. 394; England & Co. v. Railroad, 114 Mo.App. 546; Mathews v. Railroad, 142 Mo. 645; Campbell v. Railroad, 121 Mo. 340.
--On October 7, 1906, fire originated in defendant's depot at Bowling Green, Pike county, Missouri, and was communicated to Mrs. McMillan's barn and thence to plaintiff's barn, situated across the street north of the depot. The depot and both barns were entirely consumed by the fire. The action is to recover the value of plaintiff's barn, the destruction of which is alleged to have been caused by sparks emitted from one of defendant's engines. Defendant's railroad runs in a southeasterly direction, through the city of Bowling Green. The depot building was located ten or twelve feet north of and parallel with the main railroad track. The building was a two-story frame structure, from fifty to sixty feet long, built of pine lumber, with two doors fronting the railroad track. A one-story bay window, projecting outward, was built in between the two doors. The building had been neglected and had settled on the north side and the wall had parted from the bay window, leaving a crack two or three inches wide. The wood about this crack had decayed and was dry and spongy. A wooden platform ten or twelve feet wide was constructed between the depot and the track. Electric lights were burning on this platform on the night of the fire. There are two theories in respect to the origin of the fire. Plaintiff's theory is that it originated from sparks from an engine which passed the depot about thirty or forty minutes before the fire was discovered. Defendant's theory is that the fire originated from the burning stub of a cigarette. The undisputed evidence is that it was very dry at the time of the fire and the material of which the depot was constructed was old, dry and very combustible. The fire was discovered about nine p. m., and, according to plaintiff's witnesses, was burning on the outside of the building, in the crack of the bay window, or about it, and started from two to five feet above the platform. An engine hauling four or five freight cars and a caboose had pulled into the depot about 8:30 p. m., and stopped with the caboose opposite the depot for the purpose of discharging passengers. The train stopped about ten minutes then proceeded on its way south. As it passed a mill three or four blocks south of the depot the engine pulled up a slight grade and was seen to emit sparks, which were carried to the northeast, the wind blowing from the southwest at the time. Plaintiff was not at home on the night of the fire. He testified that on former occasions he had seen sparks emitted by defendant's passing engines fly north of his barn into his yard. After the freight train pulled out the depot was locked and the agent went home and no one was about the depot at the time the fire started. To sustain its theory that the fire originated from a cigarette stub, defendant offered evidence tending to prove the grade was descending from the northwest beyond the depot; that the engineer shut off the steam as the engine came in and did not turn it on again until the engine pulled out, and with the steam shut off it was impossible for sparks to escape from the smokestack; that between the two windows and under the bay window there was a table on which telegraph instruments were kept. Bonham Freeman, a boy sixteen years of age and a brother of the station agent, testified that he sat on this table, rolled a cigarette and smoked it just before the train came in, and that he threw the stub down but did not notice where he threw it; that he turned out the lights in the depot after the train pulled out, locked the door and passed around the bay window but saw no fire anywhere about the depot, and that there was no fire in the depot or about it that he knew of. The evidence shows there was a basket under the table containing waste paper and some evidence that the fire started on the inside of the depot.
Defendant offered an instruction in the nature of a demurrer to the evidence as a whole which the court refused to give. On...
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