Conner v. Missouri Pacific Ry. Co.

• Decision Date: 10 May 1904
• Parties: CONNER v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant
• Court: Missouri Supreme Court

81 S.W. 145

181 Mo. 397

CONNER v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant

Supreme Court of Missouri, Second Division

May 10, 1904

Appeal from Henry Circuit Court. -- Hon. W. W. Graves, Judge.

Affirmed.

R. T Railey for appellant.

(1) Where the evidence tends to show that an accident occurred in any one of two or more ways, one of which renders defendant liable and the others do not, the burden of proof is upon the plaintiff to show that it occurred in the manner which renders defendant liable. If the court or jury find from the evidence that the accident could have reasonably been produced in either way, then it devolves upon the plaintiff especially where the burden of proof is upon him, to show to a reasonable degree of certainty that it did not occur in the manner which would relieve defendant from liability. Oglesby v. Railroad, 177 Mo. 272; O'Malley v. Railroad, 113 Mo. 325; Perkins v. Railroad, 103 Mo. 52; Glick v. Railroad, 57 Mo.App. 105; Peck v. Railroad, 31 Mo.App. 125; Moore v Railroad, 28 Mo.App. 625; Hays v. Railroad, 97 N.Y. 259; Baulec v. Railroad, 59 N.Y. 366; Railroad v. Shertle, 97 Pa. St. 450; Duncan v. Tel. Co. (Wis.), 58 N.W. 75; Megow v. Railroad (Wis.), 56 N.W. 1099; Orth v. Railroad (Minn.), 50 N.W. 364; Wintuska's Admr. v. Railroad (Ky.), 20 S.W. 820; Hughes v. Railroad (Ky.), 16 S.W. 276; Cotton v. Wood, 8 C. B. (N.S.) 571. (2) If the belting and machinery in the mill had either been oiled or cleaned at any time prior to the fire, this fact was peculiarly within the knowledge of the plaintiff and his employees. Counsel for defendant, in his opening statement to the jury, tendered the issue at the outset that said mill had caught fire and burned on account of the machinery, belting, etc., therein. Plaintiff was thereupon put upon notice. Defendant likewise conclusively established the proposition that unless said machinery, belting, etc., was so oiled and cleaned, spontaneous combustion would easily follow. Having failed to produce this proof, in order to show that defendant's alleged negligence was the proximate cause of the injury, the case was submitted to the jury upon pure conjecture, and a verdict authorized by the court below, predicated upon said conjecture. Plaintiff having failed to follow up his alleged prima facie case against defendant, by showing that his machinery had been properly oiled or cleaned within a reasonable time, the presumption of law is that it had not been so cleaned or oiled and that the accident complained of is equally as attributable to plaintiff's neglect of duty, as that charged against defendant. 1 Greenleaf on Evid. (15 Ed.), sec. 79; 1 Wharton on L. of Evid. (2 Ed.), sec. 369; 2 Wharton on L. of Evid. (2 Ed.), sec. 1266; State v. Hathaway, 115 Mo. 44; State v. Meek, 70 Mo. 355; State v. Lipscomb, 52 Mo. 32; Kansas City v. Muhlback, 68 Mo. 640. (3) The court should have given defendant's instruction as to the credibility of plaintiff as a witness in his own behalf. Plaintiff was one of the principal witnesses in his own behalf. He was undertaking to testify about almost every fact connected with the case, and made various statements in his testimony that were material and should have been conclusively taken against him by the jury. This instruction has been repeatedly before this court and held to be proper in the following cases: Feary v. Railroad, 162 Mo. 105; Pratt v. Conway, 148 Mo. 298; Davies v. Railroad, 159 Mo. 6; Payne v. Railroad (Mo.), 30 S.W. 150; State v. Bryant, 102 Mo. 32; State v. Turlington, 102 Mo. 663; State v. Brooks, 99 Mo. 137; Bogie v. Nolan, 96 Mo. 91; State v. Peak, 85 Mo. 192; State v. Talbott, 73 Mo. 350; State v. Curtis, 70 Mo. 596; Robbins v. Butler, 24 Ill. 387; Erwin v. Railroad (Mo. App.), 68 S.W. 90. (4) It was admitted by plaintiff that no settlement had ever been made, nor does it appear that Sheidenberger and Hank were not entitled at the time of trial, on a settlement of said business, to a portion of the personal property burned with said mill, sued for in this action. They had a prospective interest, and as their rights did not appear on the face of the petition, defendant properly pleaded said matters in its answer. It is therefore insisted that both Sheidenberger and Hank should have been joined as coplaintiffs in this action. R. S. 1899, sec. 544, R. S. 1899, secs. 598, 602; Little v. Harington, 71 Mo. 391; State ex rel. v. True, 25 Mo.App. 454; Seay v. Sanders, 88 Mo.App. 486; Miller v. Crigler, 83 Mo.App. 406; Muldrow v. Railroad, 62 Mo.App. 435; McLaran v. Wilhelm, 50 Mo.App. 661. The cause should therefore be reversed. (5) Plaintiff's miller, George Sheidenberger, who had charge of the mill as plaintiff's head miller, and who had a prospective interest in the profits of said mill, knew that a portion of the glass in a window of the separating room on the south side next to the railroad track had been broken out for months. It was as large as his double fists. If sparks were liable to ignite the dust in said room, then plaintiff was guilty of negligence directly contributing to said injury, in leaving said broken glass there for months, when a nominal expense to himself would have avoided the injury. Railroad v. Brady, 16 Kan. 387; Fitch v. Railroad, 45 Mo. 322; Coates v. Railroad, 61 Mo. 38; Post v. Railroad, 108 Pa. St. 585; Collins v. Railway, 5 Hun (N. Y.) 499; S. C., affirmed, 71 N.Y. 609; Kellogg v. Railroad, 26 Wis. 236; Railroad v. Spear, 44 Mich. 170; Gibbons v. Railroad, 66 Wis. 163; Ross v. Railroad, 6 Allen 187; Kesee v. Railroad, 30 Ia. 78. "A party can not recover any damages caused by the wrongful act of another, which he might have averted by trifling expense and reasonable exertions." Douglass v. Stephens, 18 Mo. 362; Waters v. Brown, 44 Mo. 302; Railroad v. McGrew, 104 Mo. 291; Trust Co. v. Stewart, 115 Mo. 246; Logan v. Railroad, 70 S.W. 736.

M. A. Fyke, Peyton Parks, Frank B. Fulkerson and O. L. Houts for respondent.

(1) The jury, under proper instructions, found that defendant's engine burned plaintiff's mill and the finding was an unavoidable conclusion and right. Matthews v. Railroad, 121 Mo. 298; Matthews v. Railroad, 142 Mo. 645; Campbell v. Railroad, 121 Mo. 340; Kennedy v. Railroad, 70 Mo. 243; Kennedy v. Railroad, 70 Mo. 252; Redmond v. Railroad, 76 Mo. 550; Fitch v. Railroad, 45 Mo. 322; Walker Bros. v. Railroad, 68 Mo.App. 476; Torpey v. Railroad, 64 Mo.App. 382. No evidence was introduced tending to show that this fire was caused by friction or spontaneous combustion. On the other hand, the positive evidence is that defendant's engine burned plaintiff's mill. (2) There was no error in permitting plaintiff to prove the original cost of his mill and machinery, or value at time of the fire of a new mill like plaintiff's. This is clearly true in this case, where plaintiff followed up this proof by showing the value of his mill as compared with a new mill, and that his mill was as good as a new one. Matthews v. Railroad, 142 Mo. 666. (3) Plaintiff showed by conclusive testimony that his loss far exceeded the amount of the verdict. (4) Defendant's instruction was properly refused, because plaintiff did not admit or testify to any material fact, or to anything, against himself or against his interest. Defendant has not undertaken to point out any such testimony in the record. Instructions must be based upon evidence. Ephland v. Railroad, 137 Mo. 187. It has been repeatedly held by the appellate courts in this State that in civil cases it is not error to refuse this instruction, even where parties had testified to something against themselves. Ephland v. Railroad, 57 Mo.App. 147; Ephland v. Railroad, 71 Mo.App. 597; McPeak v. Railroad, 128 Mo. 617. (5) It appears from the undisputed evidence that plaintiff was the owner of the property destroyed. Defendant's proposition therefore is predicated upon a misstatement of the evidence and the authorities cited under that proposition have no application to this case. But if Hank or Sheidenberger had any interest in the property, that fact would not work a reversal of this judgment, because the most that the court would require would be a release upon the part of Hank and Sheidenberger of all claims before affirming the judgment, under the authorities cited by appellant. Mouldrow v. Railroad, 62 Mo.App. 436. They can claim no interest after testifying at the trial that the property belonged to plaintiff. (6) Plaintiff was not guilty of contributory negligence in leaving the broken glass in the window of the mill building. Mathews v. Railroad, 121 Mo. 298; Mathews v. Railroad, 142 Mo. 660. The answer did not plead contributory negligence. Defendant did not ask an instruction submitting the issue.

OPINION

FOX, J.

This appeal is brought here from the Henry county circuit court.

"The petition substantially charges that defendant, at about 3:30 in the afternoon of September 6, 1899, was operating a freight train attached to locomotive engine No. 751 traveling east through the town of Holden in Johnson county, Missouri; that fire escaped from said locomotive and burned plaintiff's mill and the contents thereof, of the value of $ 28,000, for which he asks judgment.

"The defendant's amended answer contains (1) a general denial. (2) That plaintiff was not the absolute owner of the property, but that others unknown to defendant were co-owners with said plaintiff. (3) That the property mentioned in petition was insured in several insurance companies, and plaintiff was paid by them $ 8,050, and they thereby became subrogated to plaintiff's rights. (4) That the insurance so paid exceeded the value of the property destroyed by fire and by reason thereof said plaintiff was not entitled to maintain this action. (5) That by reason of said subrogation the insurance...