Gibbs v. St. Louis & San Francisco Railroad Company

Decision Date02 February 1904
Citation78 S.W. 835,104 Mo.App. 276
PartiesGIBBS, Respondent, v. ST. LOUIS AND SAN FRANCISCO RAILROAD COMPANY, Appellant
CourtMissouri Court of Appeals

Appeal from Crawford Circuit Court.--Hon. L. B. Woodside, Judge.

Judgment reversed and cause remanded.

L. F Parker and J. T. Woodruff for appellant.

The demurrer to plaintiff's evidence should have been sustained for two reasons--the first, there was no evidence that the fire was communicated by one of defendant's engines, nor any facts from which such an inference might properly be drawn; the second, his own evidence showed as strong, if not a stronger probability that the fire started from sparks escaping from a "King heater," through a defective flue, and caught in the paper pasted to the studding and rafters in the upper story of the building, or to other combustible matter surrounding the flue. Peck v Railroad, 31 Mo.App. 123; Sheldon v. Railroad, 29 Barb. 226; Otis Company v. Railroad, 112 Mo. 622; Peffer v. Railroad, 98 Mo.App. 291; Bates County Bank v. Railroad, 78 Mo.App. 330; Railroad v DeGraff, 29 P. 664; 13 Am. and Eng. Enc. of Law, 512; Ireland v. Railroad, 44 N.W. 426; Wheeler v. Railroad, 67 Hun (N. Y.) 639; Railroad v. Morton, 3 Col. App. 155; Railroad v. Blatz, 114 Ind. 661.

Clymer & Clymer for respondent.

(1) The instructions given on behalf of the plaintiff rightly declare the law, and have been approved by the appellate courts of the State. Matthews v. Railroad, 142 Mo. 645; Hutchins v. Railroad, 97 Mo.App. 548. (2) There was sufficient evidence to warrant the submission of the case to the jury, and the court properly refused the instruction in the nature of a demurrer asked by the defendant. Kenney v. Railroad, 70 Mo. 243; Redmond v. Railroad, 76 Mo. 550; Torpey v. Railroad, 64 Mo.App. 382; Walker Bros. v. Railroad, 68 Mo.App. 465. (3) The doctrine is now well established that an appellate court will not disturb a verdict when there is evidence to support it. Neither will it undertake to weigh the evidence, and if there is sufficient testimony to warrant the submission of the case to the jury, and proper instructions are given, the verdict is conclusive. Reed v. Ins. Co., 58 Mo. 421; McFarland v. Accident Assn., 124 Mo. 204; James v. Life Assn., 148 Mo. 1; Hull v. Railroad, 60 Mo.App. 593; Fullerton v. Carpenter, 97 Mo.App. 197; O'Mara v. Transit Co., 76 S.W. 680. (4) It must clearly appear that the trial court abused its discretion in passing on motion for a new trial on the ground of the insufficiency of the testimony before an appellate court will interfere. McKay v. Underwood, 47 Mo. 187; Lawson v. Mills, 130 Mo. 170.

GOODE, J. Bland, P. J., and Reyburn, J., concur.

OPINION

GOODE, J.

Plaintiff's testator sued to recover damages for the burning of his house and furniture by a fire alleged to have been ignited by sparks emitted by one of defendant's locomotives. The cause stands now revived in the name of the plaintiff as executrix of her father's estate, he having died since it was instituted. The destroyed house was in the town of Leasburg, on the line of the defendant's railway and stood about fifty feet from the railway track, which, at that point, runs northeast and southwest. The house faced the track and was a story and a half structure, with a porch in front and extending around the corner a short distance on the east side. The testator kept a hotel, and a sign announcing that fact had been fastened to the roof of the porch; but, according to one of the witnesses, who was contradicted by another one, it had blown over and was lying on the roof the night of the fire. It is said the fire was started by a hot cinder from an engine catching against the sign. In the house that night were the deceased owner, Wm. A. Gibbs, his daughter, his son, and a wayfarer who had taken lodging with them. The fire was detected about one o'clock in the morning and at that time was burning on the northeast corner of the porch roof in a patch about one and one half feet wide and from two to three feet long close to, if not in contact with the roof of the house itself.

Plaintiff had judgment for $ 900 and defendant appealed.

The proposition relied on for a reversal of the judgment is, that the evidence was insufficient to carry the case to the jury; that is to say, on the facts proven, no inference was warranted that the fire was kindled by sparks from the engine of the train that is said to have passed through Leasburg a few moments before it was noticed.

Some facts in evidence obtrude themselves on the attention as especially important. There were fires in the house early in the evening in three stoves, the cook stove in the kitchen, a heating stove in the room where Mary Gibbs slept and a "King heater" in the room where the men slept. The latter was filled with wood when the family retired at nine o'clock and left burning. The building had caught fire previously in some manner other than from engine sparks. Notwithstanding the small patch of the roof that was aflame when the destructive fire was discovered, and though Mary Gibbs at once aroused her brother and the two tried to save the furniture, the building was so quickly enveloped in flames both inside and outside, that practically nothing of its contents was saved. Two bureau drawers and a feather mattress were gotten out, but those articles were not rescued; for Mary Gibbs testified that before they could be carried to a place of safety, they caught fire and were consumed. These facts argue that the house was on fire inside when flames were discovered on the roof. There was testimony that a mist had fallen during the preceding afternoon and that the night was cold; that only three or four minutes elapsed as the plaintiff swore, between the passage of the train and the discovery of the fire, and in that short interval the roof was blazing over a space three feet long and a foot and one-half wide.

Equally important is the lack of evidence to make the proof of defendant's responsibility at all satisfactory. There was no testimony that the train which passed immediately before the discovery of the fire threw out sparks, and no evidence tending to prove it did, except the statement of Mary Gibbs that it seemed to be a heavily-loaded train and the fact that the track runs through Leasburg on a rising grade. No witness saw the train. Neither was there testimony adduced to show that defendant's engines frequently, or ever, threw out sparks while on that grade, nor to what extent, if at all, they threw them, how large they were, or how far they flew. No testimony of a positive sort was adduced on that subject, nor opinions of experts as to whether locomotives emit sparks large enough to fly fifty feet and fall still burning. As the want of such testimony is the point on which the decision must turn, it is unnecessary to give a fuller digest of the evidence; for respondent's counsel does not contend there was any proof, either expert or direct, as to the emission of fire by locomotives.

A plaintiff suing a railroad company for damages caused by a fire alleged to have been set by a locomotive, can establish his case by circumstantial evidence that the fire was thus set, and is not to be defeated for lack of positive testimony on the issue, if he proves facts sufficing to authorize an inference that coals or sparks from an engine of the company were the source of his loss. Otis v. Railroad, 112 Mo. 622; Kenney v. Railroad, 70 Mo. 243, 252; Redmond v. Railroad, 76 Mo. 550; Sappington v Railroad, 14 Mo.App. 86; Alexander v. Railroad, 37 Mo.App. 609; Torpey v. Railroad, 64 Mo.App. 382. In those cases, and in many others, the rule is declared as we have stated it. But the propriety of submitting to the jury the question of the railway company's responsibility has been affirmed in some instances and denied in others in the obedience to another rule of evidence, namely; that where there is no direct testimony to prove the ultimate fact essential to a plaintiff's recovery, but proof of collateral circumstances is relied on, such circumstances must be of a kind to fairly point to the existence of the essential fact, to authorize the conclusion that it existed, or there is no case made for the jury to determine. A court must consider the positively proven facts as regards their tendency, according to common experience, to produce a belief in impartial minds that the unproven, but necessary, fact occurred. If the circumstances given in evidence have no tendency of that kind, they do not justify a submission of the cause to the jury; for the latter body's function is to weigh evidence which is relevant, material and possessed of probative force. The law regulates the admission of evidence during trials with reference to its pertinency to the issue as supporting one side of it or the other, excluding whatever has no bearing and receiving all that has. This policy obtains because of the presumption that the force of pertinent testimony, unweakened by admixture with irrelevant matter, will impel the minds of jurors to a fair conclusion about the truth of the issue to be determined. But when the evidence adduced by a party has no tendency, according to the experience and observation of men, to prove the main fact in dispute, the jury should not consider it; because its influence, if it exerts any, must be to stir surmises and conjectures as to the truth, instead of producing a sincere conviction. To say when, in the absence of direct evidence on an issue, collateral circumstances bear on it and become competent evidence to be weighed by a jury, is a delicate and often a difficult task; and perhaps no where more difficult than in cases in which indirect proof is depended on to show sparks from a railway engine...

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  • Foster v. The Missouri Pacific Railway Company
    • United States
    • Court of Appeal of Missouri (US)
    • May 2, 1910
    ......611; Goetz v. Piel, 26 Mo.App. 634; McCormick v. St. Louis, 166 Mo. 315; Drug. Co. v. Graddy, 57 Mo.App. 41; Ittner v. Ass'n, 97 ... Insurance Co. v. Railroad, 74 Mo.App. 107;. Insurance Co. v. Railroad, 149 Mo. 165; Allen v. ... a locomotive engine of the appellant having set out the fire. Gibbs v. Railroad, 104 Mo.App. 276; Peffer v. Railroad, 98 Mo.App. 291; Bates ......

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