Markt v. Chicago, B. & Q. Ry. Co.

• Decision Date: 15 November 1909
• Citation: 139 Mo. App. 456,122 S.W. 1142
• Court: Missouri Court of Appeals
• Parties: MARKT v. CHICAGO, B. & Q. RY. CO.

122 S.W. 1142

139 Mo. App. 456

MARKT v. CHICAGO, B. & Q. RY. CO.

Kansas City Court of Appeals. Missouri.

November 15, 1909.

Rehearing Denied December 6, 1909.

1. TRIAL (§ 140) — QUESTION FOR JURY — CREDIBILITY OF WITNESS.

It is a question for the jury whether the testimony of a party is to be believed.

2. RAILROADS (§ 484) — FIRES — EVIDENCE.

Evidence, in an action to recover for the burning of plaintiff's mill by sparks from defendant's locomotive passing about 50 feet from the building, held sufficient to submit the case to the jury under the rule that, where the evidence shows no more than a probability that the source of a fire was a railroad engine, it is sufficient to submit to the jury, although the evidence as to the origin of the fire was entirely circumstantial.

Appeal from Circuit Court, Holt County; William C. Ellison, Judge.

Action by Arthur O. Markt against the Chicago, Burlington & Quincy Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Culver & Phillip and E. M. Spencer, for appellant. B. R. Marin, R. B. Bridgman, and Chas. C. Crow, for respondent.

BROADDUS, P. J.

This is a suit to recover damages for loss sustained by plaintiff by the burning of his mill and electric plant, alleged to have been set on fire by sparks from one of defendant's locomotive engines. The plaintiff obtained judgment, from which defendant appealed.

As the appellant has taken his appeal upon the sole ground that the respondent was not entitled to recover under the proof, it is necessary to examine all the material evidence in the case for a proper determination of that question. There is no question that the fire occurred about 9 o'clock a. m. June 27, 1907, and that the property mentioned was entirely destroyed by fire. The building was located in the town of Maitland, Mo., 50 feet and 4 inches from the line of appellant's railroad track. The depot is situated on the west side of the track, which, after leaving the depot, curves to the southwest and is about 1,500 feet from where plaintiff's building was located, which was also situated on the west side of the track. The building was a two-story and basement structure covered with metal. In the basement were the engines, boilers and machinery. In the first story were the mill machinery, feedroom, and office, and in the second story was the machine for cleaning meal and grain and other material.

No one saw how the fire started, so it is a matter to be inferred from the evidence, if the appellant is to be held liable. As the respondent was the only person in and about the building just previous to its discovery, the case depends largely upon his evidence. He stated: That the line of the railroad extended in a semicircle from the depot, and then in a southwesterly direction past his building, which faced the railroad to the southwest; that there were four doors and three windows on the south side facing the track; that there was an opening in the window of the upper story on the south side about ten by eight inches, where a pane of glass had been broken a few weeks previously; that the weather was dry; that there was chaff scattered on the upper floor near this opening, and dust and cobwebs in the room, also some sacks and lumber; that he went to the building on the morning of the fire about 15 minutes after 5 o'clock; that he went in and got some feed, and then went through and milked his cow on the other side of the railroad track, and then came back and through the building again and then to his breakfast; that one Frank Ross had been in charge of the machinery until midnight the night before, after which no one was in charge; that he returned to the building about 7 o'clock, and remained there until about 9:15 o'clock; that he, during this time, went through the building, first to the boiler room to see the condition of the fire, and found that it was banked and in good condition, and he did not disturb it; that he examined the condition of the furnace, and everything was all right and the fire well banked; that he then went upstairs, opened the doors, and swept the first floor; that he then figured up some coal accounts and did a little bookwork and writing; that he saw a train pass while he was in the electric plant office; that when it passed he heard cinders rattle on the southeast window; that it sounded like the rattling of hail; that he remained there until a drayman drove up with a package and delivered it to him; that he then went out to a storage room northwest of the building, where he had his workshop, at which time it was about 15 minutes after the train had passed; that in a few minutes he started to the barn of his residence, just across the street; that as he was crossing Mr. and Mrs. Southwell, who were driving in a buggy, came along, and as they passed Mr. Southwell halloed at him, and said there must be something wrong; that he then looked back at the plant and saw a little smoke coming out from under the eaves; that from his position he could...