Taylor v. Lusk

• Decision Date: 26 June 1916
• Parties: C. R. TAYLOR et al., Respondents, v. JAMES W. LUSK et al., Appellants
• Court: Missouri Court of Appeals

187 S.W. 87

194 Mo.App. 133

C. R. TAYLOR et al., Respondents, v. JAMES W. LUSK et al., Appellants

Court of Appeals of Missouri, Springfield

June 26, 1916

Appeal from New Madrid County Circuit Court.--Hon. Sterling H McCarty, Judge.

REVERSED AND REMANDED.

Cause reversed and remanded.

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

Perkins & Baynes for respondents.

STURGIS J. Farrington, J., concurs. Robertson, P. J., is of the opinion that the instruction is not erroneous, but concurs in the result, as stated in the opinion.

OPINION

STURGIS, J.

--We all agree that this case should be reversed and remanded, but for somewhat different reasons. The case was first assigned to ROBERTSON, P. J., and the following statement of facts prepared by him, with some slight modifications, will be adopted.

Plaintiffs' sawmill, near defendants' railroad, was destroyed by fire. They sued defendants and obtained a judgment from which defendants have appealed. The trial was to a jury and the defendants submit here that the verdict should have been directed for them and that an instruction given in behalf of plaintiffs which authorized a verdict in their favor, if the jury believed "from all the evidence in the case that it was more likely that plaintiffs' mill was set on fire by an engine being operated on defendants' track than from any other cause" was erroneous. The plaintiffs' mill was situated on the west side of defendants' railroad, parallel therewith and about ninety feet from the center of the track. At that point the railroad runs nearly southwest and northeast and curves to the east. On the night of April 24, 1915, at about eleven o'clock, a freight train passed on defendants' railroad going north and about half an hour later, the south end of the mill was discovered in flames. The mill was a frame building, two stories high, and with an old plank roof which was partly open (forty feet downstairs and ten or twelve feet upstairs on the south end) on the side toward the railroad. On the night of the fire and for some days prior thereto there was a high wind blowing from the direction of the railroad toward the mill and the weather was dry. There was testimony that the track was about level at the place where the defendants' railroad passed the mill and the train "slowed up and then speeded up." One witness who resided a short distance north of the mill, less than one thousand feet, testified that she observed the train when it passed her but did not notice it throwing any sparks. Some other witnesses testified that they had seen engines at that point throw sparks forty feet high at night, as high as the trees, and one witness testified that three days before the mill burned she put out two or three small fires during the daytime between the mill and the railroad, started within about five feet of the mill, and that these were started by a passing train. Other witnesses testified that they had seen live sparks going beyond the right of way. The mill was not in use at the time it burned and had not been operated for over a year. No other origin of the fire is suggested. Defendants offered no testimony. Some of the witnesses stated that the mill was forty feet from the right of way and all who spoke of the distance from the track placed it at about ninety feet. The witness who put the fire out a few days before the mill burned said the mill was thirty feet from the right of way fence and that the fires she extinguished were twenty-five feet from the fence. On the day on which this witness discovered the fire near the mill there must have been a high wind and the weather was evidently dry, as the witness testified that these conditions had existed some days prior to this fire. Assuming that it is found that the engine was emitting sparks and that the conditions were as testified to, then we would, in order to uphold this verdict, have to reason about as follows: At one time a few days before the mill burned a live spark was carried to within five feet of the mill and there ignited the dry vegetation. Therefore at this time, practically the same weather conditions prevailing, it would be carried five feet further and ignite the mill. The fire was discovered about half an hour after the train passed and the whole mill was then on fire, showing that it had been burning approximately that long. For this reason it cannot be told just where the fire first started.

Under these facts ROBERTSON, P. J., is of the opinion that the testimony is not sufficient to fix liability upon defendants for this fire under the rulings in Gibbs v. Railroad, 104 Mo.App. 276, 282, 78 S.W. 835; Manning v. Railroad, 137 Mo.App. 631, 635, 119 S.W. 464; Fritz v. Railroad, 243 Mo. 62, 148 S.W. 74.

FARRINGTON J., and the writer are of opinion that plaintiff made a case for the jury under proper instructions but that the instruction complained of is erroneous, for these reasons: The evidence in the case is purely circumstantial but facts may be proven by circumstantial evidence as well as by direct evidence. We all agree that the instruction is not erroneous, however, because not requiring the facts proven to be such as to exclude every reasonable possibility of the fire having some other origin. The statement in the opinion (Sheldon v. Railroad, 29 Barb. 226) quoted from in Peck v. Railroad, 31 Mo.App. 123, 128, to the effect that the proof in this kind of cases must be such as to leave no reasonable doubt as to the origin of the fire, has not received the sanction of our Supreme Court in subsequent cases which have come to our attention. [Kelley v. Railroad, 151 Mo.App. 307, 310, 311, and cases there cited.] In the case of Big River Lead Co. v. Railroad, 123 Mo.App. 394, 400, 101 S.W. 636, the statement of the law quoted from in the Peck case was condemned and the decisions to the contrary reviewed. We think our Supreme Court has, in effect, repudiated that doctrine, and the New York Court of Appeals, in the same case 14 N.Y. 223, repudiated the utterances of said quotation. In Campbell v. Railway, 121 Mo. 340, 349, it is said: "The evidence was all circumstantial. It is important, then, to show that there was a possibility that sparks may have been thrown a distance sufficient to reach the building in which the fire originated and that they contained heat enough to set it on fire. The fact that live sparks were thrown from engines and did ignite grass and other...