Lester v. Kansas City, St. Joseph & Council Bluffs R.R. Co.

• Decision Date: 31 May 1875
• Citation: 60 Mo. 265
• Court: Missouri Supreme Court
• Parties: FRANKLIN LESTER, Respondent, v. KANSAS CITY, ST. JOSEPH & COUNCIL BLUFFS RAILROAD COMPANY, Appellant.

60 Mo. 265

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.

HOUGH, Judge, delivered the opinion of the court.

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 permitted the plaintiff to prove, in rebuttal, that other fires had been occasioned, in that neighborhood, about that time, by sparks, emitted from passing engines belonging to the defendant; to the admission of which evidence, the defendant objected, and excepted, on the ground that it was incompetent, irrelevant, inapplicable to the issues made by the pleadings, and calculated to prejudice the jury against the defendant; and for the further reason, that it put in issue the equipment and management of all defendant's engines, in the month of October, 1873.

The court, of its own motion, gave three instructions, the first of which, in substance, directed the jury: That if they believed from the evidence that the fire which caused the damage, escaped or was thrown from defendant's engine, through the carelessness and negligence of defendant's servants, or the insufficient or defective character of the machinery used, and occasioned the injury complained of, they should find for the plaintiff.

The second instruction was to the effect, that it devolved upon the plaintiff to show, by a preponderance of testimony, that the fire which burned plaintiff's property, escaped, or was thrown, from defendant's engine, through the negligence of defendant's servants, or by reason of the inadequacy of the apparatus employed to prevent the escape of fire, when controlled by careful and competent servants.

The third told the jury, that if they found that plain...