25 S.W. 936 (Mo. 1894), Campbell v. Missouri Pacific Railway Company

Citation:25 S.W. 936, 121 Mo. 340
Opinion Judge:Macfarlane, J.
Party Name:Campbell v. The Missouri Pacific Railway Company, Appellant
Attorney:H. S. Priest and Wm. S. Shirk for appellant. Edwards & Davison and Draffen & Williams for respondent.
Judge Panel:Macfarlane, J. Sherwood, J., dissents; Barclay, J., absent.
Case Date:March 24, 1894
Court:Supreme Court of Missouri

Page 936

25 S.W. 936 (Mo. 1894)

121 Mo. 340



The Missouri Pacific Railway Company, Appellant

Supreme Court of Missouri

March 24, 1894

Appeal from Moniteau Circuit Court. -- Hon. E. L. Edwards, Judge.


H. S. Priest and Wm. S. Shirk for appellant.

(1) Where the evidence was very close, as in this case, as to whether the defendant's engine set fire to the buildings or whether they took fire from other causes, and where the evidence did not show from what particular engine or engines the fire escaped, it was prejudicial error to permit the witness, Mrs. Greenup, to testify that, about two weeks before this fire, cinders from some one of defendant's engines set fire to some corn shucks in front of her door, and that since the fire she found cinders in clothes in her back yard, and to permit Wm. Swearingen to testify that every year, frequently, along the railroad in that vicinity there are fires set out by the engines. Coale v. Railroad, 60 Mo. 227; Lester v. Railroad, 60 Mo. 265; Patton v. Railroad, 87 Mo. 117; Redfield on Railways [3 Ed.], 455; Railroad v. Woodruff, 4 Md. 242. (2) Plaintiff's petition states a common law action purely, for negligently permitting fire to escape from its engines. It does not purport to state a statutory cause of action under section 2615. It does not allege that the engine from which the fire escaped was "in use" on defendant's railroad, nor in anywise refer to the statute. Plaintiff alleged one cause of action in his petition, and was permitted to recover upon another. This was error. Crutchfield v. Railroad, 64 Mo. 255; Cary v. Railroad, 60 Mo. 209; Rhea v. Railroad, 84 Mo. 345; Clements v. Yeates, 69 Mo. 623; Ellis v. Railroad, 17 Mo.App. 126; Stix v. Matthews, 75 Mo. 96; Field v. Railroad, 76 Mo. 614; Milburn v. Railroad, 2 Mo.App. 426; Nall v. Railroad, 97 Mo. 68. (3) It was error to give plaintiff's first instruction, and to refuse to give defendant's second, third, fourth, fifth and sixth instructions. Plaintiff was not entitled to recover, without proof of negligence, as alleged in his petition. Groll v. Tower, 85 Mo. 249; Kenney v. Railroad, 70 Mo. 243; Palmer v. Railroad, 76 Mo. 217; Fitch v. Railroad, 45 Mo. 322. (4) Plaintiff was permitted to recover under section 2615, Revised Statutes 1889. This was error because: First. Said section of said statute is unconstitutional and void, in that it impairs the obligation of the contract, between the state of Missouri and the defendant, contained in its charter, by the terms of which it is impliedly agreed that defendant might and could use fire for the purpose of generating steam to propel its locomotives and cars, and become thereby responsible only for the negligent and careless use thereof. R. S. 1889, sec. 2543; Dartmouth College Case, 4 Wheat. 518; Bank v. Sharp, 6 How. 327; Com'rs v. Trans. Co., 107 Pa. St. 112; Railroad v. Railroad, 60 Md. 263; Bank v. Hamilton, 21 Ill. 53; Merriweather v. Garrett, 102 U.S. 472; Gas Co. v. Gas Co., 115 U.S. 668; People v. Road Co., 9 Mich. 285; Sloan v. Railroad, 61 Mo. 24; State ex rel. v. Greer, 78 Mo. 188; Burroughs v. Railroad, 15 Conn. 128; Rood v. Railroad, 18 Barb. 37; Bull v. Railroad, 5 Harr. (Del.) 401; Railroad v. Lackey, 78 Ill. 57. Second. It denies defendant the equal protection of the laws. Pearson v. Portland, 69 Me. 269; State v. Hays, 81 Mo. 586; Railroad v. Moss, 60 Miss. 641; Slaughterhouse Cases, 16 Wall. 336; Railway Tax Case, 13 F. 722; Santa Clara Co. v. Railroad, 118 U.S. 394. Third. It takes defendant's property without due process of law. Railroad v. Lackey, 78 Ill. 57; Small v. Railroad, 51 Iowa 340; Zeigler v. Railroad, 58 Ala. 594; Meller v. Martin, 16 Mo. 508; Khale v. Hobin, 30 Mo.App. 476; Catron v. Nichols, 81 Mo. 82; Wally's Heirs, 2 Yerg. 554. (5) Said section, if valid, only makes the fact of the injury prima facie evidence of negligence. Small v. Railroad, 51 Iowa 346; Dill v. Railroad, 32 Am. & Eng. R. R. Cases, 324; Khale v. Hobin, 30 Mo.App. 476; Catron v. Nichols, 81 Mo. 82; Dimmitt v. Railroad, 103 Mo. 433. (6) Plaintiff was not entitled to recover under said section for personal property burned, nor for shrubs, trees and flowers upon which defendant could not obtain insurance. Chapman v. Railroad, 37 Me. 92.

Edwards & Davison and Draffen & Williams for respondent.

(1) There was no error in the action of the court in permitting the plaintiff to prove that the defendant's engines, before and after the fire in controversy, had started other fires in that vicinity within a short time of the destruction of plaintiff's property. "It was competent for the purpose of showing that sparks might have escaped from defendant's engines and been borne by the wind to a distance from the railroad track equal to that of the house in question; thus showing a possibility, and, in connection with other circumstances, a probability, that the fire originated in the manner alleged in the complaint." Sheldon v. Railroad, 14 N.Y. 218; Railroad v. Richardson, 91 U.S. 454; Railroad v. Lewis, 51 F. 658; Railroad v. Gilbert, 52 F. 711; Smith v. Railroad, 63 N.H. 25. (2) It was unnecessary for the petition to refer to the statute, in declaring defendant's liability for fires started by sparks from its engines; nor is it material that the petition alleged that the sparks were carelessly and negligently permitted to escape. "It is not necessary for plaintiff to prove all the facts alleged in his petition, but only sufficient of the allegations to make a cause of action." Morrow v. Surber, 97 Mo. 155; Radcliffe v. Railroad, 90 Mo. 127; Kehoe v. Taylor, 31 Mo.App. 588; Schultze v. Railroad, 32 Mo.App. 438; Owen v. Railroad, 95 Mo. 169. (3) The court properly instructed the jury, upon plaintiff's part, that his right to recover was established, if the jury believed, from the evidence, that the fire was caused by sparks that escaped from one of defendant's engines in use upon defendant's railroad. The statute makes the defendant liable upon proof of that fact. Session Acts of 1887, p. 101; Railroad v. DeGraff, 29 P. 664; Railroad v. Arthur, 29 P. 1031; Rowell v. Railroad, 57 N.H. 132; Simmons v. Railroad, 52 Conn. 264; Hazeltine v. Railroad, 6 New Eng. Rep. 897. (4) The act in question is constitutional. The various objections urged against the validity of the enactment, have been fully considered by the courts of other states, having a similar statute, and the power of the legislature to pass the law held unquestionable, and that, too, whether the railroad company sought to be made liable, was incorporated before or after the passage of the act. Grissell v. Railroad, 4 New Eng. Rep. (Conn) 85; Newton v. Railroad, 5 New Eng. (Conn.) 614; Railroad v. DeBusk, 3 Law Rep. Annotated, 350; Smith v. Railroad, 63 N.H. 25; Ross v. Railroad, 6 Allen (Mass.), 87; Pratt v. Railroad, 42 Me. 579; Hart v. Railroad, 13 Met. 99; Pierce on Railroads, p. 444; 2 Wood's Railroad Law, sec. 331; Rodemacher v. Railroad, 41 Iowa 297; McCandless v. Railroad, 18 L. R. A. 440. (5) The defendant was liable for the destruction of the trees as well as the other property belonging to the plaintiff. Our statute is broad enough to cover property of every kind. This question was considered and the authority relied upon by appellant discussed in Grissell v. Railroad, 4 New Eng. 85; Hazeltine v. Railroad, 6 New. Eng. 897.

Macfarlane, J. Sherwood, J., dissents; Barclay, J., absent.


[121 Mo. 344] In Banc

Macfarlane, J.

This is an action to recover damages, as alleged, by the burning of plaintiff's building, fences, shrubbery, etc., by fire communicated from one of defendant's locomotives. The petition charged negligence on the part of defendant in permitting fire to escape. The answer was a general denial.

It is agreed by counsel that the evidence, though circumstantial, tended to prove that the fire, which consumed plaintiff's property, was communicated from one of defendant's engines while being operated on its road. The court permitted a recovery under section 2615, of the statute, without proof of negligence on the part of the defendant.

I. The first proposition insisted upon as ground for reversal of the judgment is, that said section 2615, [121 Mo. 345] which makes every person and corporation responsible in damages for property injured or damaged by fire communicated directly or indirectly by locomotive engines, in use upon their railroads, without proof of negligence, is unconstitutional. This objection has received the careful consideration of this court in banc at this term in the case of Mathews v. Railroad, ante, p. 298, in which the statute in question was held valid. The objection under the authority of that case must, therefore, be overruled.

It may not be out of place here to take the occasion of stating that, in my opinion, the statute can be sustained on the broad ground, that it is merely remedial in its character, and is authorized under the general powers of the legislature to provide appropriate remedies for the redress of such wrongs as are...

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