Bates County Bank v. The Missouri Pacific Railway Company

• Decision Date: 02 February 1903
• Parties: BATES COUNTY BANK, Respondent, v. THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant
• Court: Kansas Court of Appeals

73 S.W. 286

98 Mo.App. 330

BATES COUNTY BANK, Respondent, v. THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

February 2, 1903

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

REVERSED.

Judgment reversed.

R. T Railey for appellant.

(1) There is an entire failure of proof, to the effect that defendant's locomotive which passed about 11:30 on July 11, 1900, emitted at that time any smoke, sparks or fire. (2) There is not a syllable of evidence to the effect that said locomotive was defective, or that at any time or on any occasion, in passing from Nyhart to said road crossing, it emitted any sparks or fire. (3) The evidence shows it was slightly up grade from Nyhart to said crossing a portion of the way, but it nowhere shows that on the day of the fire or at any other time it was necessary in passing between said points, for the engine to work steam, and without which no sparks could possibly have escaped. (4) There was an utter failure of proof upon the part of plaintiff, to the effect that any fire or smoke was ever seen between defendant's track and said stacks prior to the time when plaintiff's stacks were discovered to be on fire. (5) There was not a word of evidence to the effect that said stacks were not on fire before defendant's train passed. (6) There was an entire failure of proof to the effect, that some one had not passed along the railroad track with a lighted match or cigar, after the train passed, and after Chipps and Scoles had passed along said roadway. (7) There was likewise an entire failure of proof, to the effect, that no one had passed along said roadway after Chipps and Scoles went by who could have set out the fire. (8) There was an entire failure of proof to the effect, that there were no tramps or other persons loafing around said stacks with fire, and who may have burned the same after Chipps and Scoles went by. (9) We therefore insist that this case, even if determined by conjecture, and giving the plaintiff the benefit of all doubts, precludes a right of recovery herein. Moore v Railroad, 28 Mo.App. 622; Peck v. Railroad, 31 Mo.App. 125; Glick v. Railroad, 57 Mo.App. 105; Perkins v. Railroad, 103 Mo. 52; Megow v. Railroad, 56 N.W. 1100.

Smith & Denton for respondent.

(1) The defendant having tried this case in the court below upon the theory that the plaintiff in the case should show the conditions that had existed at the place where the fire occurred and that the jury should determine whether or not the fire in question might have been communicated from defendant's passing train and that the plaintiff should not be permitted by the testimony of people who had observed the progress of fire under similar conditions to prove that the fire in question under the conditions existing might have crept along this private roadway for an hour before reaching the haystack and be unnoticed by a casual passer-by, can not now be permitted in this court to change its theory upon the case so tried in the court below and insist that there was no evidence justifying the finding of the jury as to the origin of the fire because the same did not appear in the haystacks one hundred and fifty feet away until about three-fourths of an hour after the train had passed. This court will not permit appellant to try his case here upon an entirely different theory from that upon which it was tried in the court below. (2) The plaintiff in the case was not required to establish by direct and positive testimony the fact that the fire in question was caused by the defendant's engine, but only to prove the existence of such facts from which as a reasonable inference the fire in question could be traced in its origin to the defendant's engine.

OPINION

BROADDUS, J.

--The plaintiff sues for the value of a quantity of hay alleged to have been destroyed on the 12th day of July, 1900, by fire set out by one of defendant's engines while being operated on its line of railroad. The finding was for the plaintiff. The only question raised by the defendant is that the plaintiff failed to make a case.

It was shown that defendant's track passed east and west through a station named Nyhart on to the town of Butler, and within one hundred and fifty feet of plaintiff's ricks of hay that south of defendant's right of way there was a green hedge fence about fifteen feet high; that about twenty-five or thirty yards east of where the hay was stacked was a private roadway passing north and south over defendant's track and which was used by the farmers of the neighborhood in hauling hay from the bottom lands to their respective farms; that within a short time previous to the fire, some hay had been scattered along this roadway to the defendant's tracks; that on the day of the fire a mixed train of defendant's consisting of an engine, caboose, combination passenger coach, and some other cars, passed east through Nyhart going to Butler at about 11 o'clock a. m.; that the track from Nyhart to said roadway is on a slight grade; that at the time of the fire there was but a light wind; that when the smoke was first seen it was south of the hedge and extended upward for some distance and...