Hudspeth v. St. Louis & San Francisco Railroad Co.

• Citation: 155 S.W. 868,172 Mo.App. 579
• Parties: J. C. HUDSPETH, Respondent, v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Appellant
• Decision Date: 08 April 1913
• Court: Court of Appeal of Missouri (US)

155 S.W. 868

172 Mo.App. 579

J. C. HUDSPETH, Respondent, v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

April 8, 1913

Appeal from Dunklin Circuit Court.--Hon. W. S. C. Walker, Judge.

AFFIRMED.

Judgment affirmed.

W. F Evans, Moses Whybark and A. P. Stewart for appellant.

(1) The demurrer to the evidence at the close of plaintiff's case should have been sustained; and the peremptory instruction asked by defendant at the close of all the evidence should have been given. (a) Because there was no proof that sparks or coals of fire were thrown out by defendant's locomotive engine. (b) Because there was no evidence that if such coals of fire were thrown out by the engine, they would be carried the distance from the track to the barn, and be sufficiently hot to set fire to plaintiff's hay. Peck v. Railroad, 31 Mo.App. 123; Peffer v Railroad, 98 Mo.App. 291; Bank v. Railroad, 98 Mo.App. 330; Gibbs v. Railroad, 104 Mo.App. 276; Funk v. Railroad, 123 Mo.App. 169; Manning v Railroad, 137 Mo.App. 631; Campbell v. Railroad, 121 Mo. 349; Fritz v. Railroad, 148 S.W. 74. (2) The verdict is based upon conjecture, and should not be permitted to stand. Peck v. Railroad, 31 Mo.App. 123; Peffer v. Railroad, 98 Mo.App. 291; Bank v. Railroad, 98 Mo.App. 330; Moore v. Railroad, 28 Mo.App. 622; Glick v. Railroad, 57 Mo.App. 97; Yeager v. Railroad, 61 Mo.App. 594; Reed v. Railroad, 112 Mo.App. 575; Perkins v. Railroad, 103 Mo. 52. (3) The court erred in permitting plaintiff to show by the witness Whitlock over defendant's objection, the distance he had seen other sparks blown from passing trains, without showing that weather conditions were similar. Fritz v. Railroad, 148 S.W. 74.

Arthur L. Oliver for respondent.

(1) Circumstantial evidence in cases of this character is sufficient, and further, that if any evidence, however slight it may be, direct or inferential, it must go to the jury, who are the exclusive judges of its weight and sufficiency. Twohey v. Fruin, 96 Mo. 109; Charles v. Patch, 87 Mo. 462; Rice v. Sally, 176 Mo. 145; Kelly v. Railroad, 70 Mo. 607. (2) There were ample facts and circumstances from which the court and jury might have reasonably inferred that the fire was caused from appellant's locomotive, and respondent was not required to prove his cause of action by direct and positive testimony, but could and was entitled to establish his case by circumstantial evidence, and this court has so held repeatedly. Wright v. Railroad, 107 Mo.App. 209; Sappington v. Railroad, 14 Mo.App. 86; Kenney v. Railroad, 70 Mo. 243; Torpey v. Railroad, 64 Mo.App. 382; Campbell v. Railroad, 121 Mo. 340; Walker Brothers v. Railroad, 68 Mo.App. 465; Matthews v. Railroad, 142 Mo. 645. (3) Appellant next contends that the testimony of the witness Whitelock is incompetent, and that the case should be reversed on account of the admission of his testimony, but an examination of the authorities will not sustain this position. Campbell v. Railroad, supra; Wright v. Railroad, supra.

ALLEN, J. Reynolds, P. J., and Nortoni, J., concur.

OPINION

ALLEN, J.

--This is a suit to recover from defendant the value of a lot of hay, belonging to plaintiff, which was destroyed by fire on September 3, 1909, and which the plaintiff alleges was set on fire by sparks escaping from a locomotive engine belonging to defendant, appellant here.

The barn in which the hay was stored was situated in an open field, near no dwelling house, and located approximately two hundred and fourteen yards away from defendant's track, in Pemiscot county, Missouri. At the point in question, the track of defendant extends nearly east and west, and the barn was located on the north side thereof. The barn appears to have been used only for the purpose of storing hay, and at the time of the fire it was filled with hay, part of which was baled, and part loose hay. The south side of the barn, facing the railroad track, was unenclosed. The ends were closed, and the north side about half closed. The hay was so stacked as to make a wall on the south side of the barn from the ground to the roof. The evidence shows that in the southeast corner of the barn, near the roof, there was loose hay mixed with crab grass.

The fire occurred about 4:30 p. m. on September 3, 1909, and the evidence shows that it was discovered about fifteen or twenty minutes after a passenger train of defendant had passed the place. The evidence shows further that the weather was very dry, and had been so for some time, and that it was very dusty; that the hay had been stored in the barn for some weeks, and was very dry and readily combustible. On the day in question a strong wind was blowing from a little west of south, in a direction a little east of north. The evidence shows that the fire was first seen in the hay near the roof of the barn, on the south side thereof, near the east end. The barn in question stood in the southwest corner of a meadow, and between the barn and the railroad track was a cornfield. Immediately south of the barn was a cornfield which extended up to defendant's right of way.

Before the fire occurred no one was seen around the barn; no one lived near it, nor did the evidence show that there was any work being done in that vicinity. After the fire, an examination was made of the ground about the site of the barn and no footprints could be found, nor anything to indicate that any one had been about there. Coal cinders were found on the ground in the cornfield between the barn and defendant's right of way. About twenty-five feet south of the barn a coal cinder was found which had lodged on the blade of a cornstalk and had burned into the blade and blistered it. This cinder was about the size of an ordinary bean, and was described by a witness as being about the size of the end of his little finger. So far as the testimony goes, this is the only positive evidence of a live cinder being carried to within that distance of the wall of loose hay, but the evidence shows that between where this cinder was found and the right of way a great many burned cinders were found scattered over the ground.

One Whitlock, a witness for plaintiff, lived, in 1909, in a house situated about three hundred yards west of the barn, and somewhere from one hundred and seventy-five to two hundred yards from the railroad track. He testified to having seen live sparks from defendant's passenger trains, at night, blown as far as his house, and that he had seen such sparks lie on the ground as far from the railroad track as was the barn that was destroyed; that the sparks in question were red, and that he had frequently observed them thus being blown from a passenger train that regularly passed about eleven o'clock at night. He testified that in dry weather he would get up at night when this train passed to see whether his barn had caught fire; that he had seen such sparks set fire to the fence along the right of way, and set out fires between the tracks and this fence. He also testified that he had stacks of hay in his lot and would observe sparks from defendant's engine for the purpose of protecting his barn and hay. There was testimony that, on the day that the hay and barn were destroyed, the velocity of the wind was such that cinders and particles of shingles off of the roof of the burning barn were blown from half to three-quarters of a mile north thereof.

On behalf of defendant, there was evidence going to show that the condition of the locomotive which drew the passenger train in question was at the time good; that it had a wire netting to act as a spark arrester, which would break sparks into pieces probably a little larger than a bean; that the railroad track at this point is nearly level, and that there was no extraordinary or unusual puffing of the engine; that on a level track a locomotive will throw sparks about the size above mentioned through the netting, and probably seven feet above the top of the smoke stack. There was testimony that the spark arrester in this engine was inspected two days after the fire and found to be in good condition. Defendant's evidence went to show that the south edge of the barn was located 665.6 feet from the center of defendant's track. Defendant's engineer testified that in his opinion the velocity of the wind has nothing to do with the "life" of a spark, but stated that he didn't believe a spark would "live just as long" in a strong wind as in a slow one.

At the close of plaintiff's case, defendant requested the court to give a peremptory instruction in the nature of a demurrer to the evidence, which was refused by the court; and again at the close of the entire case defendant offered a like demurrer to the evidence, which was likewise refused. There was a verdict for plaintiff, assessing his damages at the sum of $ 1500, and judgment entered accordingly. After unsuccessful motions for a new trial and in arrest of judgment, and preserving exceptions to the overruling thereof, defendant has appealed to this court.

For a reversal of the judgment below, appellant urges that the demurrer to the evidence should have been sustained; that the verdict is based purely upon speculation and conjecture; and that the court erred in permitting the plaintiff to show by the witness Whitlock that "live" sparks from defendant's engines had been blown as far as the barn in question, without showing that this occurred under weather conditions similar to those existing on the day of the fire.

It is insisted that plaintiff failed to make a case entitling him to go to the jury, (1) because there was no proof that any sparks or coals of fire were thrown out by defendant's locomotive engine, upon the occasion in question, (2) because, if such...