Manning v. Cape Girardeau & Chester Railway Company

Decision Date11 May 1909
Citation119 S.W. 464,137 Mo.App. 631
PartiesMANNING, Respondent, v. CAPE GIRARDEAU & CHESTER RAILWAY COMPANY et al., Appellants
CourtMissouri Court of Appeals

Appeal from Cape Girardeau Circuit Court.--Hon. Henry C. Riley Judge.

REVERSED AND REMANDED.

STATEMENT.--The purpose of this action is to obtain damages for the burning of certain buildings owned by plaintiff in the village of Oak Ridge, in Cape Girardeau county. These buildings, a four-room frame cottage, a smokehouse and a poultry house, were alleged to be of the value of $ 1,000. They were burnt November 11 1906, and the averment of the petition is the fire originated from sparks thrown from a locomotive operated by defendants on their railroad. A general denial was filed. Plaintiff's cottage was about fifty feet from the track part of it standing on the right of way. It was occupied by a tenant named Simmons, who was employed by defendants. The cottage was a one-story building with a shingle roof and a porch in front covered with tin or sheet iron. The roof of the porch was against the eaves of the house. The fire occurred late in the afternoon. A woman who lived a quarter of a mile away, swore that immediately after the train had passed the house, she saw a bright spot which she thought was the sunlight shining on a piece of tin fixed at the edge of the roof of the house proper, until she observed the sun was not shining; then thought the brightness might be a fire, but was not certain. It was in the roof right at the edge of the porch, next to the tin on the porch roof and several feet from the flue which arose from the comb of the house. This witness did not see any sparks emitted from the locomotive as it passed. The house is situated on the south side of the railroad and the wind was blowing from the train toward it witness gave no alarm because she was not sure what she saw was fire. Another woman testified she saw the fire from her house about a quarter of a mile away half an hour after the train had passed. It was then a small fire on the roof of the main building above the porch, and there was no fire around the flue; she saw the train go by the house but did not see it throw sparks. Still another witness testified to noticing the fire half an hour after the train had passed when the fire was not very large, but had got up on the side of the roof, "a right smart from the edge of the tin roof." It was burning down from the edge of the tin roof but was going up the side. This witness said the locomotive was emitting sparks as the train passed. She saw it throw sparks when climbing the grade before it reached the house and after it left the depot, but did not notice sparks as it passed the house, which was on a level piece of track. Still another witness, who lived within a hundred yards, first saw the fire when it was about half-way down the front side of the roof and had not noticed any sparks as the train passed. The tenant Simmons said he was at the depot when the train came in, and as soon as it left started for the house a quarter of a mile away. He walked down the track, went inside the house, opened the door of a stove, found a good fire in it, closed the stove door, went out and cut two arm loads of wood, carried some back to the porch, then cut two turns of heating wood, picked up one turn and started into the house. As he did so he heard a roaring where the flue went through the roof, looked up and saw the fire through a crack; the house was all in flames between the roof and the ceiling; that was the first appearance of fire he saw; did not notice it while he was out cutting wood in the yard; the crack was next to the flue; he ran out of the house and toward the home of one of the witnesses, called the latter and when he returned the fire burst through the roof and this was the first appearance of it on the outside. Other witnesses gave testimony tending to prove the fire originated, not at the edge of the roof near the porch, but about the flue, and was under too great headway when discovered to have been ignited by sparks from the train. At the close of the evidence the court was asked to direct a verdict for defendant, which request was refused, and the jury were instructed that if they believed from the evidence plaintiff was the owner of the house and out-buildings described in the petition, and they were consumed by fire ignited from sparks from an engine of defendants on November 11, 1906, defendants were liable to plaintiff for the damage done to her property, and the verdict should be in her favor for such sum as the property was reasonably worth, not to exceed $ 1,000. A verdict was returned in plaintiff's favor, assessing her damages at $ 500 and from a judgment entered accordingly defendants appealed.

Reversed and remanded.

Giboney Houck, R. G. Ranney and Benson C. Hardesty for defendants.

Defendants'...

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