Alcorn v. St. Louis & H.R. Co.
| Decision Date | 04 April 1926 |
| Docket Number | No. 19405.,19405. |
| Citation | 284 S.W. 510 |
| Court | Missouri Court of Appeals |
| Parties | ALCORN v. ST. LOUIS & H. R. CO. |
Appeal from Circuit Court, Pike County; Edgar B. Woolfolk, Judge.
Action by James Alcorn against the St. Louis & Hannibal Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.
Hostetter & Haley, of Bowling Green, for appellant.
J. E. Thompson, of Bowling Green, for respondent.
This is an action for damages for property loss by fire, alleged to have been caused by sparks from an engine of the defendant railroad company. Plaintiff recovered a verdict and judgment for $167.50, and defendant has appealed.
The pleadings are not in controversy. It is enough to say that the petition alleges that defendant's railroad runs within a quarter of a mile of plaintiff's land, there being a meadow belonging to other persons between plaintiff's land and defendant's right of way; that the defendant ran a locomotive which was improperly constructed over its tracks so that sparks of fire escaped and set fire to defendant's right of way and the lands adjoining thereto, the fire spreading to plaintiff's premises and thereby destroying eight acres of growing timber and burning ten loads of wood, and also destroying a quarter of an acre dewberry patch.
The answer is a general denial.
The assignments of error are that the defendant's demurrer to the evidence should have been sustained because of its insufficiency to justify submission to the jury; that the instruction given on behalf of plaintiff on the measure of damages as to the growing timber is erroneous; and that the court erred in the admission and exclusion of testimony.
The following is a short recital of the facts adduced by plaintiff, which we think shows that the court properly ruled the demurrer:
Plaintiff testified that he owned this little tract of land, about a quarter of a mile north of defendant's railroad; that he was in the berry business, and had been so engaged for 25 years; that between his land and the defendant's right of way there is a 40-acre tract of land owned by another person which was in meadow except a small strip seven or eight rods wide adjacent to defendant's right of way. The fire broke out about 8 o'clock in the morning of April 23, 1924. At this point there is a steep grade on the railroad, running about two miles north and a half mile east and south of plaintiff's land, and it was shown that very frequently trains were stalled in attempting to run this grade. At the time the fire was discovered, there was a strong wind blowing from the direction of the right of way towards the property of the plaintiff. It was dry weather at the time. The proof shows that a passenger train had passed there about 7 o'clock on that morning and a freight train followed about 8 o'clock of the same morning; that the steam of the engine of the latter train in making this steep grade was heard puffing very loud, indicating that the engine was pulling hard; that a few minutes later plaintiff saw smoke in two places along the right of way. There being a narrow strip of timber next to the right of way, plaintiff could not definitely locate the place of the fire, although he says he could see it was near or upon the right of way; that he could not see the railroad from where he was working, but that he could clearly hear the train and could see the smoke that was being emitted by it. On cross-examination, the following questions and answers appear:
Plaintiff said he did not go down to the right of way until the next morning after the fire; on the day of the fire he was engaged as best he could in fighting the fire. When he got to the right of way the next morning, he noticed that the burned area reached up to the ends of the ties of the railroad, and that the fire had burned along the track for about a quarter of a mile; that the fire was on the north side of the track; that he "noticed there were sparks thrown out along there and that the fire had burned along up to the end of the ties for a quarter of a mile; I could tell that the fire had done the damage the day before."
Defendant produced its section foreman, who testified that there had been many fires along the railroad at this point. There is also evidence that the defendant, through its claim agent, had taken two men to this place after the fire to estimate the damage done by the fire.
Learned counsel for defendant insist that it devolved upon plaintiff to prove that defendant's locomotive engine actually set out the fire which damaged and destroyed his property. This statement is sometimes used in the reports as an abstract proposition of law. This must be taken, however, in connection with the principal that the proof as to setting fire need not necessarily consist of actually seeing the sparks leaving the engine and starting the fire. Circumstantial evidence is sufficient.
As was said in the case of Jones v. Railroad (Mo. App.) 204 S. W. 192:
And likewise said the Springfield Court of Appeals in the case of Slack v. Railroad, 187 S. W. 275, loc. cit. 277:
"The evidence in such cases generally consists in showing that an engine passed so recently before the fire as to indicate, and not preclude such origin; that the distance from the passing engine to the starting point of the fire is within the range of live sparks thrown from this or other engines; that the wind and weather conditions are such as to make the starting of the fire from this cause probable; that the passing engine was in fact throwing live sparks and cinders, or that its laboring upgrade, or speeding up, make such fact fairly inferable; that there was no other...
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