31 Mo.App. 123 (Mo.App. 1888), Peck v. Missouri Pac. Ry. Co.

Citation:31 Mo.App. 123
Opinion Judge:PHILIPS, P. J.
Party Name:D. A. PECK, Respondent, v. THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant.
Attorney:ADAMS & BOWLES, for the appellant. No brief for the respondent.
Judge Panel:PER CURIAM.
Case Date:May 10, 1888
Court:Court of Appeals of Missouri

Page 123

31 Mo.App. 123 (Mo.App. 1888)

D. A. PECK, Respondent,



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.


This is an action to recover damages alleged to have been done to plaintiff's fence and meadow by fire negligently communicated...

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