45 Mo. 322 (Mo. 1870), Fitch v. Pacific R. Co.

Citation:45 Mo. 322
Opinion Judge:BLISS, Judge.
Party Name:WILLIAM FITCH, Plaintiff in Error, v. The PACIFIC RAILROAD COMPANY, Defendant in Error.
Attorney:Elliot & Blodgett, for plaintiff in error. Crittenden, and Cockrill, for defendant in error.
Court:Supreme Court of Missouri

Page 322

45 Mo. 322 (Mo. 1870)

WILLIAM FITCH, Plaintiff in Error,



Supreme Court of Missouri.

January Term, 1870

Error to First District Court.

Elliot & Blodgett, for plaintiff in error.

The plaintiff having shown that the fire originated from sparks escaping from defendant's engine, the burden of proof was on the defendant to show that the engine from which the sparks escaped was, at the time, equipped with the most improved mechanical contrivances employed to prevent the escape of fire. ( Ill. Cent. R.R. v. Mills, 42 Ill. 410; McClelland v. Ill. Cent. R.R., 42 Ill. 354. See also opinion of Illinois Supreme Court in case of O. & M. R.R. Co. v. Shanafelt, not yet published.)

Crittenden, and Cockrill, for defendant in error.

I. If plaintiff, by permitting inflammable matter to grow and remain on his premises adjacent to those of defendant in error, contributed to his loss, he can not recover. It is enough to defeat him if the injury might have been avoided by the exercise of ordinary care upon his part. ( Wild v. Hudson River R.R. Co., 24 N.Y. 430; Johnson v. Hudson River R.R. Co., 20 N.Y. 65-73; Button v. same, 18 N.Y. 248; Munger v. Tonawanda R. R. Co., 37 Barb. 516; Mangum v. Brooklyn R.R. Co., 36 Barb. 230; 33 Barb. 429. See also 32 Barb. 657, 398; 31 Barb. 419; 27 Barb. 221; 14 Barb. 585, 364; 13 Barb. 493; 8 Barb. 368; 21 Wend. 188; Owen v. Hudson River R.R. Co., 2 Bosw. 374; 10 Bosw. 216; Clark v. Kiowan, 4 E. D. Smith, 21; Wetherby v. Regent's Canal Co., 12 C. B., N. S., 2; Tuff v. Warman, 5 C. B. 573; 15 Ill. 585; 16 Ill. 300; 42 Ill. 288; 2 Ill. 748; Walton v. London & Brighton R.R. Co., 1 Harr. & Ruth. 424; 10 Mich. 193; 31 Mo. 375; 42 N.H. 197; 51 Penn. 240; 24 Penn. 465; 1 Verm. 353; 8 Verm. 264; Cleveland, Columbus & Cincinnati R.R. Co. v. Terry, 8 Ohio St. 570; 15 Ind. 587; Shearm. & Redf. Neg. §§ 25, 32 and cases cited; opinion of Judge Gould in the case of Wild v. Hudson River R.R. Co., 24 N.Y. 430, and the O. & M. R.R. Co. v. Shanafelt, -- Ill. --.) The degree of the defendant's negligence is immaterial in determining questions of contributory negligence. ( Catawissa R.R. Co. v. Armstrong, 49 Penn. 186; 23 Conn. 437; 24 N.Y. 430.) In 24 Verm. 487-496, it was decided that in cases of mutual neglect, where it is of the same character and degree, no action can be sustained. ( 18 Mo. 365; 36 Mo. 351; 19 Mo. 192; 31 Mo. 412; 1 Redf. on Railw. 330, § 150.)

II. Plaintiff has shown no diligence in protecting his property against the obvious dangers of fire unavoidably issuing from the locomotives of defendant whilst it was engaged in a lawful business. The injured person must have used care proportioned to the danger to be avoided. ( Mackey v. N.Y. Cent. R.R. Co., 27 Barb. 528-542; 20 N.Y. 492; 8 Barb. 368; Shearm. & Redf. Neg. 34, § 34; 30 Penn. St. 454; 36 Mo. 487; 17 Barb. 94; 6 Cush. 292; Shearm. & Redf. Neg. § 5.)

III. Plaintiff having charged in his petition that the burning of the corn and fencing was negligently done by the defendant, it must be shown affirmatively as a matter of fact--not one of presumption. (1 Allen, Mass., 187; 37 Md. 287; 20 N.Y. 65; 62 Barb. 165; 2 Am. R.R. Cases, 325-30; 44 Ill. 460; 18 Barb. 80.


BLISS, Judge.

The plaintiff charges defendant with negligently and carelessly, and for want of due care and prudence in running its locomotives and cars, setting fire to and burning up his fences and corn fields, etc. Defendant joined issue, and judgment was recovered by the plaintiff in the Johnson Court of Common Pleas, which was reversed in the District Court.

At the trial, the plaintiff gave evidence tending to prove that the fires were kindled by sparks from the smoke-stacks of defendant's engine; that an unusual amount of smoke and sparks were emitted at the time; that the fire caught near the railroad track, in the dry grass, and also in the plaintiff's contiguous inclosure, and ran through his field and burned up his fences; that one of defendant's engines which ran that season upon this road was without the usual and suitable screens upon the smoke-stack to prevent the escape of fire, and that fire had frequently caught near the track from that engine; but it did not affirmatively appear that the fire was kindled by that engine, or that it was running at the time. The defendant gave evidence tending to prove that the company used the best machinery and contrivance to prevent the escape of sparks; that its engines always left the stations in good condition; that the fissures in the fire screens were about one-eighth of an inch in width; that the small sparks that could escape through these are not dangerous, and could not fire the grass; and that the engineers employed were competent and careful. Evidence was also given tending to show that both in the plaintiff's field near the railroad, and also inside of the railroad fence, there was dead grass, which was easily ignited. The court gave to the jury all the instructions requested by defendant's counsel, and also gave several instructions asked by the plaintiff, to which exceptions were taken.

It is unnecessary to comment in detail upon all these instructions, as the points raised and relied upon by defendant's counsel can be more briefly considered. The defendant denies, first, that negligence was proved, and claims that if the fire was kindled...

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