Logan v. Wabash Ry. Co.

• Decision Date: 03 November 1902
• Citation: 70 S.W. 734,96 Mo. App. 461
• Court: Missouri Court of Appeals
• Parties: LOGAN v. WABASH RY. CO.<SMALL><SUP>*</SUP></SMALL>

70 S.W. 734

96 Mo. App. 461

LOGAN v. WABASH RY. CO.^*

Court of Appeals at Kansas City, Missouri.

November 3, 1902.

RAILROADS—FIRES—EXTINGUISHMENT—PERSONAL INJURIES—NEGLIGENCE— PROXIMATE CAUSE.

1. Where crops were fired by sparks emitted from defendant's engine, and plaintiff, while endeavoring to save some of the property, became surrounded by the flames, and, in seeking to escape, fell, and was severely burned, the negligence of defendant in setting out the fire was not the proximate cause of plaintiff's personal injuries.

Appeal from circuit court, Schuyler county; Nat M. Shelton, Judge.

Action by A. A. Logan against the Wabash Railway Company. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

Smoot, Fogle & Eason, for appellant. Geo. S. Grover, for respondent.

BROADDUS, J.

The plaintiff, Logan, was in charge of a farm belonging to his brother, in which he had an interest in the growing crops and stock thereon. In July, 1900, an engine operated on defendant's railroad, which passed through said farm, by escaping sparks set out a fire near some hay which had been severed from the land, which was partly in ricks,—partly cut. There was also some standing hay. The plaintiff, with the aid of another man, succeeded in saving some of the hay, but while so doing he became surrounded by the flames, and, in seeking to escape, fell, and was severely burned. The court sustained a demurrer to plaintiff's case as thus made, and directed a verdict for the defendant, upon which judgment was rendered, and from which plaintiff appealed.

There was no controversy about the facts. The action is predicated upon the negligent act of the defendant in communicating fire to the premises in question. Defendant, on the trial, admitted the alleged negligence, but denied its liability, except for losses to crops by reason of the fire; but, as they were not in issue, they have nothing to do with the case. The plaintiff bases his right to recover on the ground that after he discovered the fire it became his duty—and one that he owed defendant at common law—to extinguish the fire, if he could, so as to save the defendant from loss for which it would be responsible to him for the destruction of his property. His contention amounts to this: That being in the performance of a duty which the law imposed, and while performing that duty in the exercise of ordinary care, in order to save the defendant, the wrongdoer, from loss threatened from the consequences of its wrongful act in setting out the fire, he is entitled to compensation for the injuries received. In Douglass v. Stephens, 18 Mo. 363, it was held that, in case of a tort, if an injured party can protect himself from damage at a trifling expense, or by any reasonable exertions, he is bound to do so. And the rule is illustrated by supposable cases, viz.: "Suppose a man should enter his neighbor's field unlawfully, and leave the gate open; if, before the owner knows it, cattle enter and destroy the crop, the trespasser is responsible. But if the owner sees the gate open, and passes it frequently, and willfully and obstinately, or through gross negligence, leaves it open, and cattle get in, it is his own folly. So if one throws a stone and breaks a window, the cost of repairing the window is the ordinary measure of damages. But if the owner suffers the window to remain without repairing a great length of time after notice of the fact, and his furniture and pictures and other valuable articles sustain damage, or the rain beats in and rots the window, this damage would be too remote." There is no denying the soundness of this principle....