Bowden v. St. Louis & S. F. R. Co.

• Decision Date: 15 April 1916
• Docket Number: No. 1791.,1791.
• Parties: BOWDEN et al. v. ST. LOUIS & S. F. R. CO. et al.
• Court: Missouri Court of Appeals

184 S.W. 1174

BOWDEN et al. v. ST. LOUIS & S. F. R. CO. et al.

No. 1791.

Springfield Court of Appeals. Missouri.

April 15, 1916.

Appeal from Circuit Court, Shannon County; W. N. Evans, Judge.

Action by Charles Bowden and another against the St. Louis & San Francisco Railroad Company and James W. Lusk and others, receivers. From a judgment for plaintiffs, defendants appeal. Reversed as to the Railroad Company, affirmed as to the receivers, and remanded for proper judgment.

W. F. Evans, of St. Louis, and W. J. Orr, of Springfield, for appellants. S. A. Cunningham, of Eminence, for respondents.

ROBERTSON, P. J.

This case has been here before (189 Mo. App. 148, 175 S. W. 252), and again defendants are appellants. A new trial resulted in another verdict for the plaintiffs, and appellants again urge that there was not sufficient evidence on which to submit the question of the liability of defendants for the origin of the fire to the jury. At this trial several witnesses testified as to a train passing by the scene of the fire, and it is placed at from 4 to 15 minutes before the fire was discovered. They were unable to say what kind of a train it was. They testified that there was a large amount of dry grass and weeds on the right of way, and that the wind was blowing from the track towards the place where the fire started on the right of way and spread to plaintiff's property.

When the case was here before, we reversed the judgment and remanded the cause, remarking that not to do so would place us in conflict with the decisions of the Supreme Court and other Courts of Appeal. We must now affirm the judgment or write an opinion that will conflict with decisions of the other Courts of Appeals. The facts in the case of Wright v. Chicago & Alton Ry. Co., 107 Mo. App. 209, 80 S. W. 927, are almost identical with those developed in the case at bar — surely no stronger — and there a judgment against the defendant road was affirmed. See, also, Hudspeth v. St. Louis & San Francisco R. Co., 172 Mo. App. 579, 586, 155 S. W. 868.

Fire does not ordinarily originate in dry vegetation out in the open, except it be communicated there by some human intervention. In the case at bar the evidence discloses the recent presence there of the engine pulling the train on defendants' road, and there is no proof of any other medium for setting fire being at that place just before the flames were discovered. Also the direction of the wind and the place of the origin of the fire are facts not to be overlooked. It is a fact of which we take judicial notice that engines pulling trains do emit sparks and do communicate fire to combustible material on the rights of way over which their roads run. If any one has just passed a given point with the means of communicating fire, and immediately thereafter, in a place conditioned favorable for receiving it, a fire is discovered spreading from the point where it is not improbable it would have been set from such means, and no other means was shown to be present, we would naturally conclude that the party passing set the fire. We would...