60 Mo. 265 (Mo. 1875), Lester v. Kansas City, St. J. & C. B. R. Co.

• Citation: 60 Mo. 265
• Opinion Judge: HOUGH, Judge.
• Party Name: FRANKLIN LESTER, Respondent, v. KANSAS CITY, ST. JOSEPH & COUNCIL BLUFFS RAILROAD COMPANY, Appellant.
• Attorney: Stringfellow & Hall, for Appellant. Zook & Van Buskirk, for Respondent.
• Court: Supreme Court of Missouri

Page 265

60 Mo. 265 (Mo. 1875)

FRANKLIN LESTER, Respondent,

v.

KANSAS CITY, ST. JOSEPH & COUNCIL BLUFFS RAILROAD COMPANY, Appellant.

Supreme Court of Missouri.

May Term, 1875

Appeal from Holt Circuit Court.

Stringfellow & Hall, for Appellant.

Zook & Van Buskirk, for Respondent.

OPINION

HOUGH, Judge.

This was an action for damages occasioned by the destruction of certain property of the plaintiff by fire, which it was alleged the defendant, negligently and carelessly, permitted to escape from its engines, whilst engaged in running and operating its railroad in Holt county.

It appears from the testimony, that about the 9th day of October, 1873, soon after a freight train of the defendant passed the premises of the plaintiff, a fire broke out in the dry grass, on open and uncultivated prairie lands, adjacent to defendant's track, which fire was communicated, by high winds, to the premises of the plaintiff, and destroyed a considerable quantity of hay and oats, and other articles of a different character.

The plaintiff traced the fire to the place where it began, about an hour and twenty minutes after its occurrence, and there found, as he testified, a partly consumed lump of coal, about the size of his fist, which " had melted and run together in a mass," and which he picked up and found to be still so hot, that he could not hold it.

No witness testified positively as to the origin of the fire, or as to where the burning coal came from.

The testimony of the defendant tended to show that it had, on the engine drawing the train which passed immediately before the fire and was supposed to have occasioned the burning, the best smoke-stack in use, which was furnished with the most approved spark arresters; that the flues in the smoke-stack were not more than two inches in diameter; that the spark arrester was in good condition and its interstices were not of greater diameter than from three-sixteenths to one-quarter of an inch; that the fire box had a grate beneath it, with openings one-quarter of an inch only in diameter, and was so constructed that no cinders could escape from it to the track; that no burning coal, or cinder was taken by any one from the fire box of said engine, while passing the place where the fire originated, and that the engineer, in charge of the engine, was a competent and careful man.

The court...