Peck v. Missouri Pac. Ry. Co.

• Decision Date: 10 May 1888
• Citation: 31 Mo.App. 123
• Parties: D. A. PECK, Respondent, v. THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant.
• Court: Kansas Court of Appeals

31 Mo.App. 123

D. A. PECK, Respondent, v. THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant.

Court of Appeals of Missouri, Kansas City.

May 10, 1888

Appeal from Cass Circuit Court, HON. CHARLES W. SLOAN, Judge.

Reversed and remanded.

Motion for rehearing denied.

The case and facts are stated in the opinion of the court.

ADAMS & BOWLES, for the appellant.

I. The action of the circuit court in setting aside the first judgment rendered without any motion made therefor, and rendering another judgment, was unwarranted by law; and the pretended judgment is void. Smith v. Best, 42 Mo 185; Lawther v. Agee, 34 Mo. 372; Brackett v Brackett, 61 Mo. 221; Henry v. Gibson, 55 Mo. 571. The statutes provide for what causes a finding or judgment may be set aside. No such proceedings were had in this case as are authorized by the statute. Rev. Stat., sec. 3704; Nelson v. Ghiselin, 17 Mo.App. 665; State ex rel. v. Adams, 84 Mo. 316.

II. The evidence in this case was insufficient to make out even a prima-facie case, and the court erred in refusing to declare the law as prayed by defendant in instructions numbered one, two, three, and four. Sheldon v. Railroad, 29 Barb. 228. The evidence in this case scarcely raises a suspicion that the fire was caused by defendant. A freight train passed through plaintiff's farm, and about an hour, or an hour and a half afterwards, some parties, traveling along the railroad track, discovered a fire burning on the edge of the right of way, and in plaintiff's field. There was no evidence of the escape of any fire from the locomotive. It is possible that the fire may have been caused by the passing freight train; it may have been set by some one passing along the track, or it may have occurred in many other ways. The evidence is silent, however, as to the manner in which it did actually occur. To hold the defendant liable upon such evidence is simply to say that if a casualty occurs along the railroad, or near it, though the company be engaged in the lawful use and operation of its property, it is responsible for what it may have done, without the least proof that it, in any manner, caused the damage. There should be something more than a mere suspicion or possibility that it caused the injury before it should be mulcted in damages.

No brief for the respondent.

PHILIPS P. J.

This is an action to recover damages alleged to have been done to plaintiff's fence and meadow by fire negligently communicated thereto by one of defendant's passing locomotives. The plaintiff recovered judgment; and the important question arising on this appeal is, whether or not there was sufficient evidence introduced by plaintiff to support the verdict.

The plaintiff testified as to his ownership of the property destroyed, and the extent of the damage. He was not at home when the fire occurred, and did not even see the fire. The only witness whose evidence bears upon the question of the communication of fire was John Mercer, who testified as follows: " I saw one fire in Mr. Peck's field, on north side of railroad; I can't just give the date of it; I saw the fire on the north side of the railroad along in October, 1886; I was coming along on the hand-car at the time; I was working on the section for the Missouri Pacific railroad at that time; we were coming east on the hand-car towards Strasburg; we were coming from the direction of Pleasant Hill; as we were coming east on the hand-car, it was some time in October last year, we met a freight train on the Missouri Pacific railroad a mile and a half west of where the fire was; the train was going west, and we were coming east; we took our car off the track and let the train pass; after the train had passed, we put the car on the track again and started on east; after we had gone a mile and a half from where we met the train we came to where the railroad runs through Mr. Peck's field; when we got there the fire was burning on the edge of the right of way, and was spreading towards his meadow and field; we stopped, and tried to put it out; the fire had burned along on the right of way and in the field adjoining the railroad; the fire seemed to have started on the right of way; I did not see it start, but from the fact that it had burned some of the weeds on the right of way, it looked to me as though the fire had started on the edge of the right of way. The grass was very dry; the wind was blowing pretty smart from the south. Before the fire occurred, think the grass on the right of way had been mowed, but not burned."

I. It is ever, or should be, with reluctance that courts interfere with the province of juries, or with the court sitting as a jury, as in this case, in passing upon questions of fact. Whenever, from all the facts and circumstances in evidence, a jury may, without doing violence to the dictates of reason and common sense, infer a given fact on account of its known relation to the fact proved, the court should not interpose its own different conclusion. But while this is correct, the due protection of property rights demands that the court should draw the line with a firm hand between tangible evidence and reasonable, legitimate deductions, and mere conjecture or speculation.

In this case there was no proof that any fire was seen to escape from any engine or train of cars on defendant's road, at or about the time in question. The only proof was that a freight train on defendant's road was seen one mile and a half from the fire going west. What time that train passed the given...