Bedford v. Hannibal & St. Joseph R.R. Co.

• Citation: 46 Mo. 456
• Parties: JOHN E. BEDFORD, Appellant, v. HANNIBAL AND ST. JOSEPH RAILROAD COMPANY, Respondent.
• Decision Date: 31 August 1870
• Court: Missouri Supreme Court

46 Mo. 456

JOHN E. BEDFORD, Appellant,

v.HANNIBAL AND ST. JOSEPH RAILROAD COMPANY, Respondent.

Supreme Court of Missouri.

August Term, 1870.

Appeal from Fifth District Court.

The first instruction given by the trial court on its own motion, and commented upon in the opinion of this court, was as follows:

“It is the duty of every man to so use his own property as not to cause injury to that belonging to his neighbors; and the fact of fire escaping from the engine of a railroad company and communicating to the property of others, is a fact to be considered by the jury in determining the question of negligence on the part of defendant; and if the jury believe from the evidence that the defendant, its officers or agents or employees, permitted fire to escape from the engines of the defendant, and that it communicated to and consumed the property of the plaintiff, as alleged in the first count in the petition, they will find for the plaintiff on said count.”

Instructions 5 and 6 asked by defendant and refused, also referred to below in the opinion of the court, were as follows:

5. “Before the jury can find for the plaintiff they must find that the fire was set by the carelessness and negligence of defendant, its agents or employees, and also that the plaintiff did no act that assisted in bringing about the act complained of, but that said injury was the sole act of defendant, caused by the carelessness and negligence of the defendant's agents or employees; otherwise the jury will find for the defendant on the first two counts of the plaintiff's petition.”

6. “If the jury believe from the evidence that the plaintiff contributed in any way to the damage complained of, he can not recover from the defendant anything.”McCandless & Henry, for appellant.

I. The question of negligence is one of fact, to be submitted to the jury under all the circumstances in the case (Kennedy v. North Mo. R.R. Co., 36 Mo. 351), and especially in such issues the appellate court will not disturb a verdict as against the evidence. (30 Mo. 262, 498; 15 Mo. 193; 29 Mo. 456; 28 Mo. 248, 593; 33 Mo. 260, 565; 36 Mo. 338; 37 Mo. 343.)

II. There was evidence sufficient to warrant the jury in finding negligence on the first two counts. (Fitch v. Pacific R.R., 45 Mo. 522; 36 Mo. 338; 1 Redf. Railw. 454; 2 Ired. 138; Hull v. Sacramento Valley R.R. Co., 14 Cal. 387; Bass v. C. B. & Q. R.R. Co., 28 Ill. 9.)

III. The evidence satisfactorily showed that the damage complained of was caused by fire escaping from the engines on respondent's road, which alone, according to the English doctrine, makes a prima facie case of negligence; and the courts of this State should enforce this rule. (Gen. Stat. 1865, ch. 138, § 1, which adopts the common law of England; see also Le Baun v. Le Baun, 2 Am. Law Reg., N. S., 212.)

Hall, Wright & Oliver, for respondent.

BLISS, Judge, delivered the opinion of the court.

The petition contains three counts: one for setting fire to the grass by the side of defendant's railroad, by means of their running engine, and thereby burning several wheat-stacks belonging to plaintiff; one for setting fire in the same way, at another time, and burning his oats shocked in the field; and one for running over and killing his hog, their road not being fenced. The only controversy arises upon the first two counts. The case was submitted, under instructions, to a jury, who gave a verdict for the plaintiff upon each count, upon which judgment was rendered; and we have only to consider whether the instructions were correct. The plaintiff asked ten instructions upon these counts, of which four were given and the rest refused. The first instruction given is as follows:

2. “The defendant in this case was bound to a degree of care and diligence in proportion to the degree of damages and the probable extent of injury to the property of others in case of negligence; and if the jury believe from the evidence that the defendant, its agents or employees, failed to exercise that degree of care and caution they ought to have done under the circumstances, in consequence of which fire escaped from the engine of the train in their use, and communicated to and burned the property of the plaintiff, as alleged in the...