Palmer v. Missouri Pacific Ry. Co.

• Decision Date: 31 October 1882
• Citation: 76 Mo. 217
• Parties: PALMER v. THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant.
• Court: Missouri Supreme Court

76 Mo. 217

PALMER

v.THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1882.

Appeal from Pettis Circuit Court.--HON. WILLIAM T. WOOD, Judge.

AFFIRMED.

T. J. Portis and E. A. Andrews for appellant.

Snoddy & Short for respondent.

HENRY, J.

This suit is for the recovery of damages for the destruction of plaintiff's timothy, orchard grass, etc., alleged to have been occasioned by the negligent and careless manner in which defendant managed a locomotive passing over its road, whereby sparks of fire were permitted to escape therefrom, which set fire to said timothy, etc. Plaintiff obtained a judgment, from which defendant prosecutes this appeal.

The petition contained six counts, four of which are based upon the alleged burning, and two were for killing stock; and, being compelled to make an election on which of said counts he would go to trial, plaintiff elected to proceed on the fourth, fifth and sixth. The fourth is as follows: “Plaintiff further states that on the 10th day of December, 1876, while defendant, by its agents and employes, was propelling along and over its said railroad a certain other locomotive engine, where the right of way of said railroad extends along, through and adjoining a farm owned and cultivated by plaintiff, said defendant so carelessly and negligently ran and managed said locomotive engine, to-wit: the locomotive engine attached to and drawing the passenger train going east on said road, that sparks and fire were permitted to escape therefrom into and on plaintiff's said farm, and into and on defendant's said right of way, where defendant had carelessly and negligently permitted dry grass, weeds and other combustible matter to accumulate, and thereby set fire to, and communicated fire to certain other property belonging to plaintiff on said farm, to-wit.” Then follows a description of the property destroyed.

We have no occasion to notice the fifth and sixth counts, inasmuch as appellant in the brief makes no complaint of any action of the court with respect to the trial of the issues made on them.

On the margin of the petition at the commencement, the venue is alleged as follows:

“STATE OF MISSOURI,

)

)

ss.

County of Pettis,

)

In the Pettis County Circuit Court.”

1. VENUE.

Appellant's counsel contend that the petition is fatally defective in not stating the locality of plaintiff's farm. There is no necessity in such case to allege its specific locality within the county. Stating the county in which it is situate, is sufficient, and by section 28, Wagner's Statutes, page 1018, the name of the county stated in the margin, shall be taken to be the venue intended; and it shall not be necessary to state a venue in the body of the petition, or in any subsequent pleading. The common law rule on the subject is, therefore, no longer in force. Bliss on Code Plead., § 284.

2. PLEADING NEGLIGENCE.

Appellant's counsel also insist that the petition states no specific facts of negligence or carelessness, and liken this to the case of Waldhier v. Hann. & St. Jo. R. R. Co., 71 Mo. 514. In the latter case the allegation was that “defendant by reason of its negligence and carelessness, plaintiff was run against by one of defendant's cars, thereby,” etc. A more vague allegation could not be made. Whether the negligence was that of the employes running the train, the train dispatcher or the section hands, or consisted in the improper and careless construction of the road, is not to be ascertained from that allegation. Nor is it helped by the subsequent allegation: “that plaintiff was then and there, by reason of the negligence of defendant in running and managing its train, and in having and using insufficient and defective machinery, the plaintiff was broken and mutilated,” etc. No direct connection between the negligence of the company and defendant's injury is shown; whereas here it is alleged, as a direct consequence of the negligence of the employes who were in charge of the train, that sparks of fire escaped from the locomotive by which plaintiff's grass, etc., were set on fire and consumed. The connection between the negligence alleged and the injury sustained, is clearly shown. The negligence alleged is the careless running and managing of the locomotive engine; the consequence alleged, is the escape of sparks of fire, by which fire was communicated to plaintiff's property. The difference between this petition and that in Waldhier v. Hann. & St. Jo. R. R. Co., is obvious.

The evidence for plaintiff tended to prove that immediately after the train passed over that portion of the road in question, the grass on defendant's right of way was discovered to be on fire, and it burned until it reached the field of one Norton, adjoining the right of way, and from that field passed into plaintiff's premises. The fire originated west of plaintiff's land, at a place on the right of way on which the grass had been left for a distance of 200 feet. A strong southwest wind was blowing at the time, and the communication of the fire to plaintiff's property destroyed, was caused by the dry grass on the right of way in Norton's field and in plaintiff's premises together with the wind.

For defendant the evidence tended to prove that the most approved spark-arrester and machinery were in use on the locomotive in question, and that those in charge of the train were careful and skillful in the business in which they were respectively engaged. As to the origin of the fire, Cord Leegen for defendant, testified: “That it originated in a patch of grass on the right of way 250 feet long, which was not burned when the balance of the right of way was cleared, because it would not burn; there was not enough grass. It would take a high wind to make it burn. Perhaps after it had been mashed, it would burn if wind enough. There was a high wind when the fire occurred--a hard wind, too hard to set out fire. It was my duty to keep the track clear of grass.”

3. PRACTICE.

At the close of the evidence, defendant asked fifteen instructions, all of which were refused, and we refrain from embodying them literally in this opinion, on account of the space they would occupy. One or two would have been sufficient to present every question involved in the case; and the practice of encumbering the record with instructions which are but repetitions of each other, cannot be too strongly condemned. They not only confuse juries, when given, but impose unnecessary labor both on the trial court and this court, and a reform in this practice is very much needed.

The first, second, fourth, fifth and ninth were to the effect that under the pleading and evidence plaintiff could not recover. They were based upon the alleged insufficiency of the petition, and having already disposed of that question, nothing more on the subject need be said.

The seventh instruction is as follows:

“The court instructs the jury that two things must concur in this case to entitle plaintiff to recover:

(1) Negligence on the part of the defendant.

(2) That there was no contributory negligence on the part of the plaintiff.

And further, that the law presumes that the defendant while in the exercise of its lawful right to run its locomotives and trains over its railroad, and to use fire in so doing, was not guilty of negligence in permitting fire to escape from its locomotives; and that in this case the simple fact that fire did escape and destroy plaintiff's property, if the defendant was using good machinery and the most approved appliances to prevent the escape of fire, and had careful and competent men in charge thereof, is not sufficient to entitle the plaintiff to recover.

And further, that if you find from the evidence that dry grass, weeds and other combustible matter were allowed to remain on defendant's right of way, to which the fire was communicated, (and that the fire was caused...