70 Mo. 243 (Mo. 1879), Kenney v. Hannibal & St. J.R. Co.

• Citation: 70 Mo. 243
• Opinion Judge: HENRY, J.
• Party Name: KENNEY v. THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant.
• Attorney: Chas A Winslow with A. W. Mullins and George W. Eastey for appellant. Shanklin, Low & McDougal for respondent.
• Judge Panel: NAPTON and NORTON, JJ., concur; SHERWOOD and HOUGH, JJ., in the result.
• Court: Supreme Court of Missouri

Page 243

70 Mo. 243 (Mo. 1879)

KENNEY

v.

THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1879

Appeal from Caldwell Circuit Court. --HON. E. J. BROADDUS, Judge.

REVERSED.

The plaintiff in his petition claimed damages for two fires, one alleged to have occurred on the 1st day of February and the other on the 3rd day of February.

Chas A Winslow with A. W. Mullins and George W. Eastey for appellant.

1. There being no fact shown, mdependent of the mere escape of fire, from which negligence may be found, the loss in damnum alsque injuria. Turnpike Co. v. Railroad Co., 54 Pa.St. 345; Railroad Co. v. Hendrickson, 80 Pa.St. 182; Flynn v. Railroad, 40 Cal. 14: s. c., 6 Am. note p. 597.

2. There is no absolute presumption of negligence growing out of the fact that fire escaped from the engine. It is but an inference of fact, at the most, which is rebutted by showing that the " best machinery and contrivances were used to prevent such a result, and that careful and competent servants were employed." No contrivance has yet been invented to entirely prevent the escape of sparks from an engine. All that reason and prudence can possibly require is, that the most approved appliances shall be used and placed in the hands of skillful and careful servants. When this has been done, there can be no such thing as negligence predicated on the mere escape of sparks, and in order to make out a case for recovery, other elements of negligence must be shown. It is only for the negligent use of fire that railroad companies are responsible. Fire is a dangerous element, and yet one absolutely necessary for the generation of steam. Without its use in this respect the advancing civilization of the age must stand still. While this demand does not justify total immunity from damages occasioned by its use, it does not require that those who use it shall become insurers against consequent damages under all circumstances. The full measure of duty in this regard is, that those safeguards which the inventive genius of the age has produced and experience tested, shall be applied to prevent casualties, and that no negligence shall supervene in their use. Wharton on Neg., §§ 869, 872; Shear. & Redf. on Neg., § 332; Smith v. R. R., 37 Mo. 287; Fitch v. R. R., 45 Mo. 322; Clemens v. R. R., 53 Mo. 366.

3. The court erred in permitting the old worn-out spark arrester to be paraded before the jury. Coale v. R. R. Co., 60 Mo. 227.

Shanklin, Low & McDougal for respondent.

HENRY, J.

Plaintiff sued for damages for the destruction of thirty-five acres of meadow, thirty acres of pasture and 376 yards of hedging, by fire, which, he alleged, through the carelessness and negligence of defendant's agents, & c., in managing a locomotive engine on defendant's road was communicated by sparks emitted by said engine. The answer was a denial of the allegations in the petition. Plaintiff obtained a judgment, from which defendant has appealed.

The evidence as to the origin of the fire was, that just after a train of defendant's cars passed through plaintiff's farm, about ten o'clock a. m., 1st of February, 1876, one witness saw smoke coming down the railroad, and discovered two fires. One did no damage; the other was inside of...