Big River Lead Company v. St. Louis, Iron Mountain & Southern Railroad Company

CourtCourt of Appeal of Missouri (US)
Writing for the CourtGOODE, J.
Citation101 S.W. 636,123 Mo.App. 394
Decision Date05 March 1907

101 S.W. 636

123 Mo.App. 394



Court of Appeals of Missouri, St. Louis

March 5, 1907

Appeal from Jefferson Circuit Court.--Hon. Joseph J. Williams, Judge.


Judgment affirmed.

Martin L. Clardy and James F. Green for appellant.

(1) There was not sufficient evidence to establish the fact that the fire was communicated from defendant's engines, and the court should have so instructed the jury. Gibbs v. Railroad, 104 Mo.App. 276; Wright v. Railroad, 107 Mo.App. 209; Peffer v. Railroad, 98 Mo.App. 291; Fields v. Railroad, 113 Mo.App. 642; Bank v. Railroad, 98 Mo.App. 330; Peck v. Railroad, 31 Mo.App. 123; Moore v. Railroad, 28 Mo.App. 622. (2) Where there is no direct evidence to prove the ultimate fact essential to recovery, the facts proven must point strongly to the existence of such fact necessary to be established. Hess v. Railroad, 36 Mo.App. 163; Perkins v. Railroad, 103 Mo. 52; Yeager v. Railroad, 61 Mo.App. 592. (3) A verdict based upon mere conjecture will not be permitted to stand. Shore v. Bridge Co., 111 Mo.App. 278; Bank v. Railroad, 98 Mo.App. 336; Smart v. Kansas City, 91 Mo.App. 592; Warner v. Railroad, 178 Mo. 134; Epperson v. Railroad, 155 Mo. 382; Root v. Railroad, 92 S.W. 627; Glick v. Railroad, 57 Mo.App. 97. (4) Plaintiff's first instruction is erroneous in that it refers the jury to the petition to ascertain the issues submitted. McGinnis v. Railroad, 21 Mo.App. 413; Remler v. Shenuit, 15 Mo.App. 196; Proctor v. Loomis, 35 Mo.App. 488; Allen v. Transit Co., 183 Mo. 411; Kohn v. Railroad, 92 S.W. 1144. (5) The court erred in admitting evidence as to other claims against defendant, and as to other fires. Gobel v. Kansas City, 148 Mo. 475; Coale v. Railroad, 60 Mo. 227; Patton v. Railroad, 87 Mo. 117; Lester v. Railroad, 60 Mo. 265.

Byrns & Bean and H. B. Irwin for respondent.

(1) In passing on a demurrer to the evidence, not only the truth of the facts shown, but every inference of fact, which the evidence warrants, and which the jury with propriety might make, must be made in favor of plaintiff. Gannon v. Gas Co., 145 Mo. 516; Twohey v. Fruin, 96 Mo. 109. (2) There was ample testimony on which to submit the case to the jury. Field v. Railroad, 113 Mo.App. 644; Holland v. Railroad, 13 Mo.App. 585; Torpey v. Railroad, 64 Mo. 382. (3) The court properly admitted the testimony of the witnesses showing how sparks of fire were thrown by defendant's engines, both before and after the time of the fire in question. Campbell v. Railroad, 121 Mo. 340; Gibbs v. Railroad, 104 Mo.App. 276. (4) The train sheet, kept by defendant, showing the time its trains passed Irondale on the night of the fire, was competent as an admission of defendant. 1 Greenleaf on Evidence (15 Ed.), p. 274, par. 198; Railroad v. Daniel, 3 L. R. A. 1193.


[123 Mo.App. 396] GOODE, J.

Plaintiff, an incorporated company, suffered a loss by fire November 21, 1903, and seeks compensation from the defendant on an averment that the fire was kindled by sparks emitted by one of defendant's locomotives. According to the statement of the petition, the property burned was one barn of the value of $ 2,000, another barn of the value of $ 1,000, four mares worth $ 650, two mules worth $ 300, two thousand bushels of corn worth $ 900, one hundred and twenty-five tons of hay worth $ 1,250, five hundred sacks worth $ 25, one thousand pounds of mixed feed, worth $ 900, four hundred bushels of oats worth $ 120, five sets of harness, worth $ 75, farm machinery worth $ 100 and a hog pen, [123 Mo.App. 397] worth $ 50. The fire started after midnight and before two o'clock in the morning. One witness observed it at five minutes before two o'clock. It caught in the roof of the larger of the two barns, which is situate two hundred and twenty-three feet from defendant's railroad. The different properties described in the petition were all consumed by the fire and evidence was put in to prove they were of the values alleged. Three trains passed Irondale, the station where the fire occurred, on the night of its occurrence after midnight and prior to the discovery of the fire; but the engineers and firemen of the locomotives which drew those trains swore no sparks were thrown out by either of the engines while traveling along the Irondale grade. This grade is quite heavy. It begins to rise one mile and a quarter north of the station and continues to ascend toward the south for six miles. The effect of the grade is to increase the difficulty of drawing trains over the track and to draw them a strong head of steam is worked, causing the engine to throw coals and sparks to a considerable distance. Some witnesses said they had seen sparks from other locomotives fall further from the track than plaintiff's barns were. An exception was saved to the admission of this testimony, as it related to other times than the night of the fire and the sparks were not shown to have been emitted by the engines which passed Irondale on said night. This point must be ruled against the defendant on the authority of Campbell v. Railroad, 121 Mo. 340, 349, 25 S.W. 936, and Mathews v. Railroad, 142 Mo. 645, 657, 44 S.W. 802. It is competent in actions like this to show the railroad company's locomotives had thrown out sparks and cinders which fell farther from the track than the burned property, and also that fires were started on other occasions by falling sparks at a greater distance than this plaintiff's property was. The reason for admitting such evidence was stated in Sheldon v. Railroad, 14 N.Y. 218, an authority [123 Mo.App. 398] cited with approval in the foregoing decisions of our Supreme Court. The reason is that there is usually a uniformity of plan and construction in locomotives used by a railway company, so that if some of them emit cinders, presumably the others do. If they differ in construction and some are less likely to throw out fire than others, the company can prove these facts.

The court received in evidence a train sheet kept by the defendant company's Chief Train Dispatcher at DeSoto, and showing what trains passed through Irondale on the night in question. This document is said to have been inadmissible. The sheet was identified by the train dispatcher and proved to have been kept in defendant's regular course of business. We have no doubt it was competent evidence; but if it was not, its admission did no harm, because the defendant proved the same facts by the crews of the engines attached to the trains which passed Irondale on the night in question.

Counsel for defendant insist the evidence relied on to show the fire was kindled by one of the defendant's locomotives was insufficient to justify the submission of that issue to the jury; an assignment to which we have given patient study because we are sensible that the evidence is circumstantial and not as satisfactory as positive proof would be. But the question for our decision is: Was there any substantial evidence tending to prove the cause of the fire was a coal or cinder cast out by one of defendant's locomotives? In dealing with this question we will state the evidence in the phase most favorable to plaintiff, as we are bound to do in view of the jury's right to accept some parts of the evidence as true in preference to other parts. The weather was dry and the night starlit, with a breeze floating from the east or southeast; that is, from the railroad track toward the barns. The railroad track at that point was on a high bank and nearly level with the eaves of the barns. We [123 Mo.App. 399] have stated that defendant's locomotives, in running up the Irondale grade, often threw out sparks and cinders. Witnesses swore to having seen them rise from twenty to forty feet in the air and that cinders had fallen still burning further away than plaintiff's property. When first discovered the fire was on the outside and about the middle of the roof of the larger barn; the one nearest the railroad track. At that time there was no fire inside the barn. No testimony was given which tended to show any other possible origin of the fire, except that two women who were passing about half past eight o'clock in the evening swore they saw a dim light in the larger barn moving upward, as though a person with a match was climbing into the loft. But this hour was too long before the barn took fire for the light observed to be deemed the probable origin of the conflagration, and there was no other light about the barns on that night. At least one of the trains which passed after midnight was heavy and much steam had to be used to draw it up the grade. The fire was first seen about one o'clock, and the heaviest train had passed at 12:51 p. m. and the others at four minutes after twelve, and five minutes after twelve. One witness testified that prior to the fire in question, while standing in the barn lot and beyond the buildings, a cinder from a locomotive had fallen on his hand and burned him. This is a fair statement of the substance of the evidence relied on to prove the origin of the fire was burning matter emitted by one of defendant's locomotives. Was it sufficient to warrant the inference that such was its origin, the fact essential to plaintiff's recovery? The testimony that on other occasions hot coals or cinders had fallen as far from the railroad track as the barns, and about the barns, showed the possibility of the fire having been kindled by means of a hot coal from a locomotive. This point has been determined on great consideration by eminent courts and is now settled law. [Railroad v. Richardson, 91 U.S. 454, 23 L.Ed. 356, [123 Mo.App. 400] and citations below.] We are cited to Coale v. Railroad, 60 Mo. 227, and Lester v. Railroad, 60 Mo. 265, as ruling the other way. But those decisions were overruled in Hoover...

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