Chicago, B. & Q.R. Co. v. Gelvin

• Decision Date: 10 November 1916
• Docket Number: 4580.
• Citation: 238 F. 14
• Parties: CHICAGO, B. & Q.R. CO. v. GELVIN.
• Court: U.S. Court of Appeals — Eighth Circuit

238 F. 14

CHICAGO, B. & Q.R. CO. v. GELVIN.

No. 4580.

United States Court of Appeals, Eighth Circuit.

November 10, 1916

Rehearing Denied January 13, 1917. [Copyrighted Material Omitted]

M. G Roberts, of St. Joseph, Mo. (Culver & Phillip, O. M. Spencer and E. M. Spencer, all of St. Joseph, Mo., on the brief), for plaintiff in error.

John E. Dolman, of St. Joseph, Mo. (B. R. Martin, of St. Joseph, Mo., on the brief), for defendant in error.

Before HOOK and ADAMS, Circuit Judges, and ELLIOTT, District Judge.

ELLIOTT District Judge.

This is an action brought by the defendant in error, David A. Gelvin (hereinafter referred to as the plaintiff), against the plaintiff in error, Chicago, Burlington & Quincy Railroad Company (hereinafter referred to as the defendant), upon a petition containing two causes of action, set forth in counts numbered 1 and 2 of the petition.

Count 1 of the petition contained proper averments as to the incorporation of the defendant railway, its ownership and operation of a railroad line in and through the county of Holt, state of Missouri, adjoining lands therein referred to, belonging to the plaintiff, over which it ran and operated locomotive engines and trains of cars; that plaintiff's said lands, consisting of about 800 acres, were pasture lands, heavily set in blue grass of the finest quality; that on the 10th day of August, 1912, the defendant, its servants and employes, were operating a locomotive over and along defendant's said line of railway, through and adjoining plaintiff's lands, and so carelessly and negligently managed and operated said engine as to allow fire to escape therefrom, and that defendant and employes were negligent and careless in using and operating on its said line of railway a defective engine, improperly equipped and out of repair, so that fire was permitted and allowed to escape and did escape, setting fire to the dry weeds, grass, and dead vegetation which defendant carelessly and negligently permitted to grow and accumulate and remain on its right of way, adjoining plaintiff's said pasture and meadow land, which fire was communicated to plaintiff's meadow and pasture and spread over and burned and totally destroyed 146.87 acres of said blue grass meadow and pasture, and totally destroyed the roots and setting of said blue grass, which was alleged to have been firmly set, rooted, and imbedded in the soil; that at the time of the setting of said fire plaintiff was the owner of 391 head of high grade fat cattle, feeding and fattening upon said blue grass meadow; that the fire, consuming and destroying said blue grass meadow, pasture, and mulch, caused immense volumes of smoke, flames, and sparks to rise upward therefrom, causing a rumbling and roaring noise, by reason whereof plaintiff's cattle were 'caused to become and did become scared, terrified, and frightened, and then and there stampeded in their efforts to escape from said fire, smoke, and noise, and said entire herd, containing 391 head of fat cattle, as aforesaid, ran and stampeded in a body over and through said pasture lands, and through timber then and there growing thereon, and over and through deep ravines and streams which then and there extended and meandered through said pasture lands, and over logs and fallen trees and stumps then and there being and lying upon said pasture lands, and said fat cattle in said frightened, terrified, and feverish condition ran and stampeded for a distance of three miles; that the weather on said date was excessively hot, humid, and oppressive, and that said cattle, by reason of the aforesaid conditions, were caused to become and did become excessively heated, feverish, nervous, and excitable, and many of them were bruised, maimed, and crippled by reason of their aforesaid stampede, and one steer died as a result of injuries received therefrom; that because and on account of the aforesaid conditions said cattle lost heavily in weight, became sick, distempered, nervous, uncontrollable, and excitable, and they became frightened and terrified thereafter at slight noises, and upon six different occasions within . . . days thereafter stampeded together over said lands, because and on account of all the aforesaid conditions resulting directly from the negligent setting out of the aforesaid fire in plaintiff's said pasture by defendant, * * * said cattle were caused to and did lose large quantities of flesh and weight, and refused to eat and take food, water, and nourishment of any kind, to the great damage of plaintiff in the sum of $10,000,' with a prayer for judgment in that sum.

The second count contained similar allegations as to the incorporation of the railway defendant, its ownership and management of trains over and across the blue grass pasture owned by the plaintiff, the setting of the fire, the carelessness and negligence of the defendant, and it was further alleged that said pasture lands were heavily set in blue grass of finest quality, and that there was produced from the roots thereof large crops of pasture and grass seed annually, without reseeding; the roots of said grass at all times being thoroughly fertilized and enriched from many years usage as pasture lands for many thousand head of cattle; that said fire spread over and burned and totally destroyed 146.87 acres of said blue grass meadow and pasture, destroying the roots and setting of said blue grass, so firmly set, rooted, and imbedded in said soil as aforesaid, and burning, consuming, and totally destroying said mulch being formed upon, covering, and forming a part of said soil, as aforesaid, by reason whereof plaintiff averred he had sustained damages in the sum of $7,000, and demanded judgment for that sum.

To this petition the defendant filed its answer, consisting of a general denial. Thereafter, at the September, 1914, term, this cause was heard, and on September 29, 1914, the jury returned the following verdicts:

'We, the jury, find the issues for the plaintiff and assess his damages at $5,400 on the first count of the petition.

'(Signed)

J. P. Tucker, Foreman.'

'We, the jury, find the issues for the plaintiff and assess his damages at $2,115.65 on the second count of the petition.

'(Signed)

J. P. Tucker, Foreman.'

Judgment was thereafter, on January 8, 1915, entered in favor of the plaintiff and against the defendant upon the two verdicts, for the aggregate sum of $7,515.65, together with his costs. Defendant had theretofore moved for a new trial, the same having been denied, and defendant prosecutes this writ of error.

Assuming that there is a cause of action stated in the first count of the petition for damages to personal property, to wit, the cattle of the plaintiff, there is little dispute between the parties as to the proper measure of damages and the law applicable in the ascertainment of the damage in such cases. It seems to be conceded by all parties that the true measure of damage to personal property that has not been entirely destroyed, as applicable to the plaintiff's cattle in this case, is the difference between the value of the cattle in the plaintiff's pasture on the 10th day of August, 1912, immediately before the fire, and their value on the farm there at Maitland after the fire, if there was any such difference.

The controversy presented here arises upon the objections of the defendant to the method employed by the plaintiff in proving this damage. The plaintiff, having established the fire, the negligence of the defendant, and the injury to the cattle, the simple issue for determination by the jury was the amount of damage suffered by the plaintiff by reason of the injury shown, and that damage should have been measured by the difference in value immediately preceding the fire and immediately after the fire, at the place where the cattle were kept. Instead of confining the proof to the value of the cattle before the fire and the value of the cattle after the fire, the plaintiff was permitted, over the objection of the defendant, to testify, in substance, the kind and quantity of feed he fed the cattle both prior and subsequent to the fire, and was permitted to state his opinion, based upon the conditions surrounding the feeding of the cattle, as they existed prior to the fire, and if there had been no fire, and upon his experience and observation in previous years as a cattle feeder, as to the amount of weight or flesh that these cattle would each have put on per day if fed continuously on the same feed and pasture from the date of the fire until he sold them, in October of the same year.

He was further permitted to testify that skilled and experienced cattlemen can tell, with a reasonable degree of accuracy, the amount of weight a steer will put on and ought to put on when fed a given amount of corn or other feed; then to describe the kind, character, size, and weight of these cattle when he put them in this pasture the February before the fire; that they were large-framed cattle; and that, taking into consideration the kind of cattle, the breed of cattle, the frame of the cattle, and the character of the cattle that he had in his pasture, and the kind and quantity of feed that he fed them both before and after the fire, he was permitted to state that they would probably have put on and ought to have put on 2 1/2 pounds of flesh each per day; that he sold the cattle in Chicago in October upon four different dates, from the 5th to the 23d, inclusive.

He was further permitted to testify to the weight of the cattle in Chicago, that the selling price averaged $9.16 per hundredweight, and then to testify to what, in his opinion those cattle would have weighed in Chicago at the time of the sale, if fed as he had fed them, the amount that he...