257 S.W. 477 (Mo. 1923), 23279, Missouri Egg & Poultry Co. v. Missouri Pac. R. Co

Docket Nº:23279
Citation:257 S.W. 477
Opinion Judge:WOODSON, C. J.
Attorney:James F. Green, of St. Louis, for appellant. Bates, Hicks & Folonie, of Chicago, Ill., and Montgomery & Rucker, of Sedalia, for respondent.
Judge Panel:In Banc. All concur, except RAGLAND, WHITE, and JAMES T. BLAIR, JJ., who dissent.
Case Date:November 20, 1923
Court:Supreme Court of Missouri

Page 477

257 S.W. 477 (Mo. 1923)




No. 23279

Supreme Court of Missouri

November 20, 1923

Motion for Rehearing Overruled January 4, 1924.

James F. Green, of St. Louis, for appellant.

Bates, Hicks & Folonie, of Chicago, Ill., and Montgomery & Rucker, of Sedalia, for respondent.

In Banc. All concur, except RAGLAND, WHITE, and JAMES T. BLAIR, JJ., who dissent.




The plaintiff brought this suit in the circuit court of Pettis county against the defendant to recover $ 54,879.64 damages sustained by it caused by burning the property of the former located at Holden, Mo.

Counsel for respondent state the facts of their side of the case as follows:

Between the hours of 1 and 2 a. m. on the 13th day of August, 1920, the building and contents of a poultry station owned by plaintiff was destroyed by fire. The total value was $ 54,879.64. There was no real dispute concerning the value of the property destroyed. The Missouri Pacific tracks approaching the town of Holden from the west run parallel with and approximately 50 feet from the lot on which plaintiff's poultry station was located, prior to the fire. The building was approximately 255 feet in length, 53 feet wide at the east end, and 25 feet wide at the west end. Part of its length the building was one story and a half in height, and a part one story. Over the portion which was one story high, there was constructed a ventilator, the sides of which during the summer months was open except for some chicken wire. The building was immediately south of the railroad right of way. On the night in question employes of the plaintiff company were engaged in unloading some supplies and concluded their labors about 9:30. The building was electrically wired with a switch in the office which cut off all of the electrical current throughout the entire building. There was no fire in the building, and no one had been smoking that evening. The employes left the building at about the hour above indicated, locked all the outside entrances, and turned off the electrical current at the main switch in the office. Just east of the poultry house and immediately across the public road therefrom, which was about 40 feet in width, was located the Holden Ice, Light & Fuel Company plant. The night engineer in charge of said light plant was in and out of the plant and in a position to observe the building owned by plaintiff, and testified that there was no fire or evidence of fire about the poultry plant until a few minutes after the passing of defendant's east-bound train No. 10. It also appears that there was a stiff breeze blowing from the north on the night in question, and defendant's witness, May, testified that he passed along the north side of the building shortly before the arrival of train No. 10, and there was no sign of any fire about the premises at that time. In the loft and immediately under the open ventilator plaintiff had placed boards at intervals across the runway below and stored thereon a large quantity of excelsior, some in pads or bundles and some loose. Within five or ten minutes after defendant's train passed the poultry house, witness McGee, night engineer for the light company, noticed a fire in the poultry plant, and upon inspection found a considerable fire on the floor of the runway immediately under the excelsior pads. It appears that the floor on this runway was free of trash or debris at the time the plant was closed by plaintiff's employes at 9:30 p. m. Witness McGee described the fire as being something burning on the floor. The fire was promptly reported to the fire chief, and, though on the scene within 10 or 15 minutes after the same was

Page 478

discovered, the flames were beyond control and the entire building with the contents was destroyed.

The Missouri Pacific tracks run into Holden from the west on a heavy upgrade approximately three-fourths of a mile in length. Plaintiff's witnesses all testified that the defendant's trains coming into Holden from the west used a full head of steam in making the grade and that on a number of occasions freight engines have been unable to pull the grade with a full train, making it necessary to break the train and take the same up the grade in sections. There was considerable testimony concerning the throwing of sparks and brands of fire by defendant's trains as the same drew into Holden. Two witnesses told of having been severely burned by sparks from defendant's locomotives while on the roof of plaintiff's building. Engineers testifying for defendant admitted that it was not uncommon for locomotive engines to throw sparks. But defendant undertook to negative the possibility of the said engine in question having thrown sparks by evidence: First, that it was the uniform custom of defendant's engineers to coast up the long grade into Holden without the use of any steam, this being possible by reason of a downgrade immediately west of the upgrade coming into Holden and that no locomotive could throw sparks with the steam shut off; and, second, that defendant's engines were equipped with a type of spark arrester which precluded the possibility of the engine throwing sparks even though steam were used. Defendant brought into court the spark arrester with which it was alleged the engine was equipped on the night in question. A spark arrester is composed of heavy wire netting held together by angle irons and bolts with which the same is fastened into the front of the engine. There are, in addition to the wire netting, a number of plates referred to as baffle plates and a petticoat on which the brands of fire are thrown by the force of the draft and broken into small particles before reaching the wire netting. The only expert witness produced by defendant who had no railroad connections was one Murphy, a fire prevention and protection engineer, who was in the employ of insurance underwriters. All witnesses testified that if the wire meshing which was part of the spark arrester was defective, or had any openings in it larger than the ones provided at the time of its manufacture, the same was liable to permit brands of fire to escape. On cross-examination the witness Murphy testified that the spark arrester submitted for his examination, and which defendant alleged was in the engine in question on the night of the fire, was not...

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