Peffer v. The Missouri Pacific Railway Co.

Decision Date02 February 1903
Citation71 S.W. 1073,98 Mo.App. 291
PartiesT. A. PEFFER, Respondent, v. THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant
CourtKansas Court of Appeals

Appeal from Jackson Circuit Court.--Hon. W. B. Teasdale, Judge.

REVERSED.

Judgment reversed.

Elijah Robinson and Harris Robinson for appellant.

The court should have sustained defendant's demurrer to the evidence. Upon reason as well as authority a verdict which under the evidence in the case, must necessarily have been based upon mere guesswork or conjecture upon the part of the jury, should not be permitted to stand. Moore v Railroad, 28 Mo.App. 622; Railroad v. Shertle, 97 Pa. St. 450; Peck v. Railroad, 31 Mo.App. 123.

C. C Madison for respondent.

(1) In passing on a demurrer to the evidence, not only the evidence itself, but every reasonable inference to be drawn therefrom, should be considered. Torpey v. Railroad, 64 Mo.App. 382. (2) The fact that locomotives carry fire and throw sparks, with no other reasonable or probable way in which the fire could have originated, was ample evidence to justify the court in submitting the case to the jury. Torpey v. Railroad, supra; Kenney v. Railroad, 70 Mo. 243. (3) The fact that a fire was set by a railroad company may be established by purely circumstantial evidence. Campbell v. Railroad, 121 Mo. 345.

OPINION

ELLISON, J.

This is an action for damages to plaintiff's fruit trees and berry bushes which were burned by a fire which plaintiff claims was set out by defendant's engines. There were two counts in the petition covering two separate fires. On the first plaintiff was allowed one hundred and fifty dollars, and on the second, five dollars.

The sole point presented is that there was not sufficient evidence that defendant's engines caused the fire, upon which to base the verdict. We have gone over the evidence and have concluded that there was not sufficient of substance in it from which the jury could reasonably infer that the fire was set by defendant's engines. There is an upgrade at the point which requires the use of extra power and it was shown that the engines, as a consequence, in passing that place, frequently threw sparks. That a large number of trains passed daily; that they passed about every hour, and that the usual number passed on the day in question. That about noon plaintiff discovered the fire had burned over the ground, and that it began about twenty feet from the track and went with the direction of the wind. It could be seen that it was a fresh fire. But in this there is nothing to show that defendant's engines set the fire. There was every other opportunity as well as that presented by defendant's engines. There is nothing to show, or from which it may be...

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2 cases
  • Kansas City Southern Railway Co. v. Harris
    • United States
    • Arkansas Supreme Court
    • November 18, 1912
    ...by the witness Williams) and the fire which destroyed plaintiff's property at 2 o'clock the next morning. 42 P. 602; 100 S.W. 504; 71 S.W. 1073; 83 N.W. 79 N.W. 1032; 75 N.W. 1114; 47 N.E. 691; 33 S.E. 917; 29 S.E. 213; 121 F. 924; 100 N.W. 207; 79 N.W. 310; 55 S.E. 270; 110 N.W. 561; 86 P.......
  • Campbell & Davis v. Moll
    • United States
    • Missouri Court of Appeals
    • January 14, 1920
    ...in the dark as to the other two stacks, in fact entirely misinstructed; refusing a proper instruction asked by the plaintiff. Pepper v. Railroad, 98 Mo.App. 291; Knapp v. Kelly, 153 Mo.App. 196; Blackwell Bailey, 1 Mo.App. 328; Meffert v. Dyer, 107 Mo.App. 462. Ralph E. Bailey for responden......

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