Patton v. St. Louis & San Francisco Ry. Co.

Decision Date31 October 1885
Citation87 Mo. 117
PartiesPATTON v. THE ST. LOUIS & SAN FRANCISCO RAILWAY COMPANY, Appellant.
CourtMissouri Supreme Court

Appeal from Dade Circuit Court.--HON. C. G. BURTON, Judge.

REVERSED.

John O'Day for appellant.

(1) “A petition stating, without any specification of facts, that plaintiff was injured in consequence of the negligence of the railroad company in using defective machinery, and in running and managing its railway and cars, would be fatally defective, and when such allegations are used in connection with a specific statement of a cause of action, they do not enable the plaintiff to recover on any cause of action except that specifically stated.” Waldhier v. H. & St. Jo. Ry. Co., 71 Mo. 514. “The statement in question does not contain an averment of a single fact, but only states a conclusion of law, and is insufficient as a statement of a cause of action.” Butts v. Phelps, 79 Mo. 302. “It is merely a conclusion of law; it is not a statement of any fact at all.” Rosenberg v. Boyd, 14 Mo. App. 429. “Under a general allegation of negligence, the plaintiff cannot recover in this action, for this gives the defendant no notice of facts, and is only a conclusion.” Leduke v. Railroad, 4 Mo. App. 485; Lee v. Mfg. Co., 6 Mo. App. 578; Harrison v. Ry. Co., 74 Mo. 364. (2) The issue made by the pleading was solely whether the defendant was guilty of negligence in allowing its right of way to become covered with dry grass and other combustible matter, and the court's instructions should have been confined to this. Ely v. St. L., K. C. & N. Railroad, 77 Mo. 34; Buffington v. Railroad, 64 Mo. 246; Eden v. H. & St. Jo. Ry. Co., 72 Mo. 212; Bell v. H. & St. Jo. Ry. Co., 72 Mo. 50; Price v. H. & St. Jo. Ry. Co., 72 Mo. 416; Waldhier v. H. & St. Jo. Ry. Co., 71 Mo. 514; Kenney v. H. & St.Jo. Ry. Co., 70 Mo. 252; Carson v. Cummings, 69 Mo. 325; Bank v. Murdock, 62 Mo. 70; Weil v. Greene Co., 69 Mo. 281. (3) The court's instructions were erroneously mere abstractions. Goodwin v. Ry. Co., 75 Mo. 73; Young v. Ry. Co., 79 Mo. 341; Zimmermann v. Ry. Co., 71 Mo. 490. (4) The objection to the leading character of the questions in the depositions came too late at the trial. Glasgow v. Ridgely, 11 Mo. 40; Walsh v. Agnew, 12 Mo. 525; Sheeler v. Speer, 3 Binney, 130. (5) The court should not have permitted plaintiff to introduce evidence of other fires occurring in the neighborhood of the railway the same day as that on which the plaintiff's wheat was destroyed by fire, without some evidence that such fires were occasioned by the particular engine in controversy. 1 Redfield on Railways (3 Ed.) 455; Baltimore & Susquehanna Railroad v. Woodruff, 4 Md. 242; Cole v. H. & St. Jo. Ry. Co., 60 Mo. 233; Lester v. K. C., St. Jo. & C. B. Ry. Co., 60 Mo. 265. (6) Plaintiff could only recover such damages as were averred in his petition, and the admission of evidence tending to prove damages other than those alleged in his petition, was error. State ex rel. v. Roberts, 62 Mo. 388; Graves v. Severens, 40 Vt. 636; Gilbert v. Kennedy, 22 Mich. 117. (7) Whether plaintiff's failure to protect his stacks and other property was contributory negligence, should have been submitted to the jury by instructions. Carson v. Ry. Co., 7 A. & E. Railway Cases, 501; Linzee v. Railroad, 29 Minn. 411; Ry. Co. v. Brady, 17 Kas. 380; Kessee v. Ry. Co., 45 Wis. 222; 6 Allen, 87; 48 Ill. 501; 78 Pa. St. 295; Coates v. Ry. Co., 61 Mo. 38; Brown v. Ry. Co., 37 Mo. 297; 25 Kas. 420. (8) The instruction of the court that the plaintiff is entitled to recover upon proof that the fire was communicated from the engine directly to plaintiff's premises, is not warranted by the allegations of the petition. Ry. Co. v. Morgan, 72 Ill. 155. “A party cannot make one case by his pleadings, and another by his proof.” Tracey v. Rogers, 69 Ill. 662; Ry. Co. v. Nichie, 83 Ill. 427. (9) Where the property destroyed is situated on the lands of the owner, distant from the right of way, a complaint which alleges that the fire was negligently set on the defendant's right of way, but does not allege that it was negligently permitted to escape from the right of way, is fatally defective, and states no cause of action. Pittsburg, Cincinnati & St. Louis Ry. Co. v. Hixon, 79 Ind. 111; Pittsburg, etc., Ry. Co. v. Culver, 60 Ind. 469; Higgins v. Dewey, 107 Mass. 494; 13 A. & E. Railway Cases, 456, 458, and cases there cited.

Goode & Cravens for respondent.

(1) The petition not only states a good cause of action, but the proof was competent and relevant under its allegations. Lynn v. C., R. I. & P. Ry. Co., 75 Mo. 167; Schneider v. Mo. Pac. Ry. Co., 75 Mo. 295; Meyer v. A. & P. Ry. Co., 64 Mo. 542; Mack v. St. L., K. C. & N. Ry. Co., 77 Mo. 232; Werner v. Citizens' Ry. Co., 81 Mo. 368. (2) There was no substantial error or injustice done the defendant in the exclusion of the parts of depositions complained of. The court will not reverse this case because the court below may technically have erred in excluding some parts of the depositions. State ex rel. v. Edwards, 78 Mo. 473; Birney v. Sharp, 78 Mo. 73. (3) The instructions given by the court taken together, presented the case fairly to the jury, and the judgment should be affirmed. Henchen et al. v. O'Bannon, 56 Mo. 289; McKeon v. Citizens' Ry. Co., 43 Mo. 405; Porter v. Harrison, 52 Mo. 524; Clements v. Maloney, 55 Mo. 352. (4) It was not error to admit evidence of other fires set out by the same engine on the same trip and about the same time. (5) The evidence as to what property was destroyed, and the amount of plaintiff's damages was strictly confined to the allegations contained in the petition. (6) The instruction asked by the defendant on the subject of contributory negligence on part of plaintiff was properly refused. Such is not the law. Any supposed negligence of the plaintiff in not plowing around his field or stacks prior to the escape of fire, would afford no excuse to defendant for the negligence in failing to keep its right of way clean, and in the subsequent negligent escape of fire. Werner v. Citizens' Ry. Co., 81 Mo. 368; Scoville v. H. & St. Jo. & B. B. Railroad, 81 Mo. 434; Karle v. K. C., St. Jo. & C. B. Railroad, 55 Mo. 476.

BLACK, J.

In November, 1880, a fire started on the right of way of the defendant, and thence spread to plaintiff's stubble field, which adjoined the railroad, and thence continued to his cornfield, destroying his stacks or ricks of unthreshed wheat and oats, and ten or fifteen acres of corn on the stalk. For the damage thus done he sues the defendant, and alleges that through the negligence of defendant's servants it suffered the right of way to become covered with dry grass, etc., and negligently permitted fire to escape from one of its locomotives, by reason of all of which the property was destroyed.

1. After the plaintiff made proof tending to support the issues on his part, including evidence to the effect that the fire started from burning coals or cinders as large as a hen's egg, found on the track immediately after the locomotive in question passed, and that this locomotive threw out an unusual amount of sparks, the defendant offered to read several depositions. Much of the evidence in these depositions was excluded. The excluded testimony tended to show that the engineer and fireman were competent and careful persons, and that the locomotive was of a new and of an approved make, and was supplied with a good spark arrester, and had been inspected, etc. The objection made to the evidence was that the questions were leading, and that nearly all of them were leading does not admit of a doubt, but the objection was not made at the time of taking the depositions, though plaintiff appeared and cross-examined the witnesses. The objection, coming as it did for the first time on trial, was too late. The competency and relevancy mentioned in section 2159, Revised Statutes, relates to the substance of the evidence, and not to the form of the questions. Glasgow v. Ridgeley, 11 Mo. 34; Walsh v. Agnew, 12 Mo. 525; Fox v. Webster, 46 Mo. 182. The evidence was both relevant and competent, for an inspection of the instructions will show that the case did not go to the jury solely on the ground of negligence in allowing the grass to accumulate on the right of way. Indeed, it was negligence, in consequence of which fire escaped from the engine, which constitutes the central feature of all of the instructions. We need scarcely add that the answer of Karney to the sixty-first question was hearsay, and, of course, properly excluded.

2. Several persons assisted in arresting the progress of the fire, and one of them stated that he noticed other fires along the line of the road just after he saw this one, and the plaintiff stated that he saw another fire east and one west along the road at the same time. Wade says as they went back to their work they saw fires east and west; the one west was at McKibbon's field, along the right of way, and was three-quarters of a mile off; the one east was a mile or more off, and was up in the wood; could see the smoke, but could not see the fire; could not say that it was on the right of way, but was in that direction. On cross-examination he says the one at McKibbon's field was on the right of way, that no trains other than the one in question passed while they were there. There was other evidence tending to show that one other train did pass while the persons before named were arresting the fire. All this evidence as to the other fires was admitted over the objections of defendant. There is no dispute in this case about the identity of the locomotive which set the grass on fire communicated to plaintiff's farm, and the only question is, does this evidence tend to show that this engine was negligently equipped or managed. The evidence must be taken in connection with that before mentioned, and also with the evidence which tended to show that the train--a freight train--was...

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