243 S.W. 140 (Mo. 1922), Farmers Elevator & Grain Company v. Hines

Citation:243 S.W. 140, 294 Mo. 639
Opinion Judge:GRAVES, J.
Party Name:FARMERS ELEVATOR & GRAIN COMPANY v. WALKER D. HINES, Director General of Railroads, Appellant
Attorney:J. F. Green, W. H. Meschede and Frank W. McAllister for appellant. R. S. Robertson and Fyke, Snider & Hume for respondent.
Judge Panel:GRAVES, J. Woodson, P. J., is absent.
Case Date:June 16, 1922
Court:Supreme Court of Missouri
 
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Page 140

243 S.W. 140 (Mo. 1922)

294 Mo. 639

FARMERS ELEVATOR & GRAIN COMPANY

v.

WALKER D. HINES, Director General of Railroads, Appellant

Supreme Court of Missouri, First Division

June 16, 1922

Appeal from Saline Circuit Court. -- Hon. Samuel Davis, Judge.

Reversed and remanded.

J. F. Green, W. H. Meschede and Frank W. McAllister for appellant.

(1) The court erred in refusing to give defendant's instruction in the nature of a demurrer at the close of plaintiff's evidence in chief. All of the substantial testimony offered by plaintiff as to the place of origin clearly indicates that the fire started in the baled hay on the east side of the warehouse, and from twenty-five to thirty feet south of the northeast corner. The mere fact that a locomotive passed near the property, and that shortly thereafter the fire was discovered, would not alone authorize the submission of the case to the jury. Fritz v. Railroad, 243 Mo. 77. But these are the only ultimate facts plaintiff proved. Even if it had been shown in addition that the locomotive was emitting sparks, still the plaintiff would not have been entitled to a verdict. Slack v. Ry. Co., 187 S.W. 277. A comparison of the facts disclosed by plaintiff's evidence in chief in this case with the facts involved in the following cases, and the application of the rules of law therein applied, are conclusive that plaintiff failed to make out a case. Fritz v. Ry. Co., 243 Mo. 62; Riggins v. Railroad, 233 S.W. 67; Gibbs v. Railroad, 104 Mo.App. 276; Otis Co. v. Railroad, 112 Mo. 630; Bank v. Railroad, 98 Mo.App. 330; Peck v. Railroad, 31 Mo.App. 123; Manning v. Railroad, 137 Mo.App. 631; Funk v. Railroad, 123 Mo.App. 169; Slack v. Railway, 187 S.W. 275; Peffer v. Railroad, 98 Mo.App. 291; Bowden v. Railroad, 189 Mo.App. 148. (2) The court erred in giving plaintiff's Instructions 2 and 3. By these instructions the case was submitted to the jury upon the theory that if it was more probable that the fire was communicated to plaintiff's property by one of defendant's engines than in any other way, the plaintiff was entitled to recover. While it recognized in general terms the universal rule that the burden of proof is on the plaintiff, it undertook to qualify that rule by saying that the burden was met by proof of facts and circumstances which might not be proof that defendant's locomotive actually communicated the fire to plaintiff's property, but which satisfied the jury that it was probably so communicated. The effect was to tell the jury that they might ignore the rule requiring plaintiff to prove the essential fact upon which defendant's liability depended, to-wit, that defendant's locomotive actually communicated the fire to plaintiff's property, and to find defendant liable upon a mere probability that the fire was communicated by the locomotive. 10 R. C. L. p. 898; 38 Cyc. 1750. Preponderance of the evidence is defined in Cartlich v. Met. St. Ry. Co., 129 Mo.App. 729. Other cases to the same effect are: Railroad v. Trimmell, 75 Ill.App. 591; Finch v. Day, 36 A. 909; Telegraph Co. v. James, 73 S.W. 82; Ewen v. Wilbur, 70 N.E. 578; Wilkinson v. Anderson, 79 P. 47; Fritz v. Railroad, 243 Mo. 76; 36 Cyc. 1755-1756; Taylor v. Lusk, 194 Mo.App. 133; Ins. Co. v. Lusk, 223 S.W. 809. (3) The court permitted witness Hicks to testify that some six or seven years prior to the trial sparks from a passing locomotive on defendant's railroad had set fire to another building. This testimony was objected to by defendant as too remote, but the objection was overruled by the court. The testimony was clearly incompetent. Tate v. Ry. Co., 210 Mo.App. 221; 33 Cyc. 1371-1372.

R. S. Robertson and Fyke, Snider & Hume for respondent.

(1) The court did not err in refusing to give defendant's instruction in the nature of a demurrer at the close of plaintiff's evidence in chief. Conner v. Mo. P., 181 Mo. 414; Mathews v. Railroad, 121 Mo. 298; Matthews v. Railroad, 142 Mo. 645; Campbell v. Railroad, 121 Mo. 340; Kennedy v. Railroad, 70 Mo. 243; Redmond v. Railroad, 76 Mo. 550; Fitch v. Railroad, 45 Mo. 322; Hudspeth v. Railroad, 172 Mo.App. 586; Lead Co. v. Railroad, 123 Mo.App. 394; Talpey v. Railroad, 129 Mo.App. 88; Markt v. Railroad, 139 Mo.App. 456; Kelley v. Railroad, 151 Mo.App. 307. Appellant's evidence did not in any degree weaken the force of plaintiff's evidence, and hardly rises to the dignity of raising an issue of fact as to how the fire originated, hence the court properly overruled appellant's demurrer to the evidence at the close of the whole case. (2) Plaintiff's Instructions 2 and 3, have met the approval of this court in every case in which the rule or quantum of evidence required to sustain such issue as is raised in this case has been considered. Marshall v. Ins. Co., 43 Mo. 586; Palston v. See, 54 Mo. 296; Rothschild v. Ins. Co., 62 Mo. 356; Edwards v. Geo. Knapp & Co., 97 Mo. 432; State ex rel. v. Ellison, 268 Mo. 239; Stack v. Gen. Baking Co., 283 Mo. 422; Fire & Marine Ins. Co. v. Lusk, 205 Mo. 199; Miller v. Fireman's Ins. Co., 206 Mo.App. 492; Garner v. Ins. Co., 200 S.W. 449; Smith v. Burnes, 106 Mo. 94; Farmers Loan & Trust Co. v. Southern Surety Co., 226 S.W. 935. (3) The admission of the testimony of witness Hicks was not error. Sheldon v. Railroad, 14 N.Y. 223; Field v. Railroad, 32 N.Y. 339; Webb v. Railroad, 49 N.Y. 421; Railroad v. Richardson, 91 U.S. 470; Smith v. Railroad, 63 N.H. 25; Railroad v. Gilbert, 52 F. 711; Thatcher v. Railroad, 85 Me. 509; Campbell v. Railroad, 121 Mo. 340; Matthews v. Railroad, 142 Mo. 645; Lead Co. v. Ry. Co., 123 Mo.App. 394. Under the undisputed evidence the verdict was for the right party. The admission of that evidence, even if it should not have been admitted, which we do not concede, if it did not materially affect the merits of the action, was harmless. Farmers Loan and Trust Co. v. Southern Surety Co., 226 S.W. 935. And so the statute provides. R. S. 1919, sec. 1513; Hogan v. Railway, 150 Mo. 36; O'Neill v. Kansas City, 178 Mo. 102; Swope v. Ward, 185 Mo. 329; Hayden v. Gravel Co., 186 S.W. 1195; Syndon v. Wagner Elec. Co., 285 Mo. 91; Loan & Trust Co. v. Surety Co., 285 Mo. 652. The evidence, aside from the testimony of Hicks conclusively establishes that defendant's engines did throw sparks, and to a sufficient distance to reach plaintiff's warehouse. The many reported cases decided by this court fully demonstrate the fact that engines do communicate fire to property along the railroad, to much greater distance than in this case.

GRAVES, J. Woodson, P. J., is absent.

OPINION

[294 Mo. 644] GRAVES, J.

Action for damages. Plaintiff owned a grain elevator and warehouse at Sweet Springs, Missouri, on and near the right-of-way of the Missouri Pacific Railway Company. A line of the railroad operated by said company runs through the town of Sweet Springs, coming from the northwest and passing out in a southeasterly direction. To the west of the town is Davis Creek, and from thence to the southeast there was an up-grade in the track.

On September 30, 1918, the elevator, warehouse, and their...

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