Bates County Bank v. Missouri Pac. Ry. Co.

• Decision Date: 02 February 1903
• Citation: 73 S.W. 286,98 Mo. App. 330
• Parties: BATES COUNTY BANK v. MISSOURI PAC. RY. CO.<SMALL><SUP>*</SUP></SMALL>
• Court: Missouri Court of Appeals

73 S.W. 286

98 Mo. App. 330

BATES COUNTY BANK v. MISSOURI PAC. RY. CO.^*

Court of Appeals at Kansas City, Missouri.

February 2, 1903.

FIRE CAUSED BY ENGINE—SUFFICIENCY OF EVIDENCE—INFERENCES.

1. Evidence examined, and held to fail to show that a fire in hayricks was caused by an engine passing over a near-by railroad track.

2. Where the inference that a fire in hayricks was not communicated from a passing locomotive is as strong as the inference that it was so caused, the owner of the hayricks is not entitled to recover from the railroad company.

Appeal from Circuit Court, Bates County; W. W. Graves, Judge.

Action by the Bates County Bank against the Missouri Pacific Railway Company. Judgment for plaintiff, and defendant appeals. Reversed.

R. T. Railey, for appellant. Smith & Denton, for respondent.

BROADDUS, J.

The plaintiff sues for the value of a quantity of hay alleged to have been destroyed on the 12th day of July, 1900, by fire set out by one of defendant's engines while being operated on its line of railroad. The finding was for the plaintiff. The only question raised by the defendant is that the plaintiff failed to make a case. It was shown that defendant's track passed east and west through a station named Nyhart on to the town of Butler, and within 150 feet of plaintiff's ricks of hay; that south of defendant's right of way there was a green hedge fence, about 15 feet high; that about 25 or 30 yards east of where the hay was stacked was a private roadway, passing north and south over defendant's track, and which was used by the farmers of the neighborhood in hauling hay from the bottom lands to their respective farms; that within a short time previous to the fire some hay had been scattered along this roadway to the defendant's tracks; that on the day of the fire a mixed train of defendant, consisting of an engine, caboose, combination passenger coach, and some other cars, passed east through Nyhart, going to Butler, at about 11 o'clock a. m.; that the track from Nyhart to said roadway is on a slight grade; that at the time of the fire there was but a light wind; that when the smoke was first seen it was south of the hedge, and extended upward for some distance, and then gradually moved toward the south; and that the hay between the hayricks and where the roadway crossed the railroad track, and extending along said roadway a strip, had been burned between said points. The witnesses agree that the fire was first discovered about one hour after the passage of defendant's train. Witness J. I. Ehardt testified that he was about one-half mile northwest of the rick of hay at the time he first saw the smoke, at which time it was on the south side of the hedge, and that he did not see any smoke or fire between the railroad track and the hedge before this time. A. A. Malone, a witness who saw the smoke while he was about a mile away, went to the place of the fire in two or three days afterwards. He testified that the fire had burned along the private crossing up to the end of the ties on the railroad. Harrison Chipps testified that he lived about three-fourths of a mile from the place where the hay was destroyed; that in the forenoon of the day in question, in company with one Abe Scoles, he was west of Nyhart, and saw defendant's train pass at 11:28 o'clock a. m.; that he was then on his way home; that in going home he passed through Nyhart, and stopped there three or four minutes to hitch a hayrake to the rear end of his wagon; that he had some straw in his wagon, and that he sat in front, driving his team;...