Atkinson v. Atlantic & Pacific R.R. Co.

Citation63 Mo. 367
CourtUnited States State Supreme Court of Missouri
Decision Date31 October 1876
PartiesJ. W. ATKINSON, Respondent, v. ATLANTIC & PACIFIC RAILROAD COMPANY, Appellant.

Appeal from Cass Common Pleas Court.

J. N. Litton & Robert Adams, jr., for Appellant.

J. D. Lisle, for Respondent.

HOUGH, Judge, delivered the opinion of the court.

This was an action to recover damages for the destruction of three hundred and seventy fence rails, and for injury done to a large number of forest trees growing upon plaintiff's land, which destruction and injury were alleged to have been occasioned by the negligent escape of fire from a locomotive of the defendant.

The plaintiff made a prima facie case of negligence against the defendant, which it did not attempt to rebut, and it will therefore be unnecessary to notice the instructions given and refused by the court on that subject.

The only question in the case is as to the measure of damages. On this point the court instructed the jury as follows: “that plaintiff is entitled to recover of defendant the amount of damages which the evidence shows he has sustained, together with interest thereon at the rate of six per cent. per annum from the date of the burning.”

In the case of Patrick S. Kenney vs. The Hann. & St. Joe. R. R. 63 Mo. 99, which was a suit for damages occasioned by the negligent escape of fire from the defendant's locomotive, interest on the damages was allowed by the trial court, and its judgment was reversed for that reason. Judge Napton, who delivered the opinion of the court, said: We are not apprised of any statutory provision of this State which allows a jury to give interest for such damages as were claimed in this suit. There is no such provision in our statute concerning interest, and the 7th section of the Act concerning damages, which allows interest in cases of the unlawful conversion of property by the party sued, would not in terms, or by analogous reasoning, embrace a case where no benefit could possibly have accrued to the defendant by the negligence which occasioned the destruction of the property.”

That case is decisive of this and the judgment of the circuit court must therefore be reversed.

As the case is to be re-tried, it may be well to remark that the true measure of damages, as to the trees injured, is the difference between the value of such trees before the fire and their value after the fire.

The judgment will be reversed and the cause remanded.

Judge Wagner absent; the other judges concur.

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37 cases
  • Wiggins Ferry Company, And Respondent v. Chicago & Alton Railroad Company, And Respondent
    • United States
    • United States State Supreme Court of Missouri
    • April 30, 1895
    ...... defendant. (3) Cars sent across by the Missouri Pacific. Railroad and other western roads, were delivered to defendant. by the ...Schricker , 63 Mo. 308;. Kenney v. Railroad , 63 Mo. 99; Atkinson v. Railroad , 63 Mo. 367; Meyer v. Railroad , 64 Mo. 542; De Steiger ......
  • Humphreys v. St. Louis & Hannibal Railway Co.
    • United States
    • Court of Appeal of Missouri (US)
    • July 2, 1915
    ...destroyed through the negligent setting out of a fire by a locomotive. [See DeSteiger v. Hannibal & St. J. R. Co., 73 Mo. 33; Atkinson v. A. & P. R. Co., 63 Mo. 367.] So, too, the rule is that interest may not be recovered on the amount of damages suffered through the negligent killing of s......
  • Gerst v. City of St. Louis
    • United States
    • United States State Supreme Court of Missouri
    • December 22, 1904
    ...for injury to her property. Kenneday v. Railroad, 63 Mo. 99; Allen v. Smith, 63 Mo. 103; Marshall v. Schricker, 63 Mo. 308; Atkinson v. Railroad, 63 Mo. 367; v. Railroad, 64 Mo. 542; DeSteiger v. Railroad, 73 Mo. 33; Chicago v. Allcock, 86 Ill. 384; Railroad v. Knapp-Stout, etc., Co., 160 M......
  • Cleveland School District v. Great Northern Railway Co.
    • United States
    • United States State Supreme Court of North Dakota
    • May 21, 1910
    ......& St. P. R. Co. 1 S.D. 326, 9 L.R.A. 824, 47. N.W. 146; Atkinson v. Atlantic & P. R. Co. 63 Mo. 367; Elvins v. Delaware & A. Teleg. & ......
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