Clark v. St. Louis S. F. Ry. Co.

• Decision Date: 20 January 1928
• Docket Number: No. 4259.,4259.
• Citation: 4 S.W.2d 843
• Parties: CLARK v. ST. LOUIS S. F. RY. CO.
• Court: Missouri Court of Appeals

4 S.W.2d 843

CLARK v. ST. LOUIS S. F. RY. CO.

No. 4259.

Springfield Court of Appeals. Missouri.

January 20, 1928.

Rehearing Denied April 7, 1928.

Appeal from Circuit Court, Polk County; C. H. Skinker, Judge.

Action by E. C. Clark against the St. Louis San Francisco Railway Company. Judgment for plaintiff, and defendant appeals. Reversed, and remanded for new trial.

E. T. Miller, of St. Louis, and Henry S. Conrad, L. E. Durham, and Hale Houts, all of Kansas City, for appellant.

G. C. Burnside, of Springfield, and Herman Pufahl, of Bolivar, for respondent.

BRADLEY, J.

This is an action to recover for the loss of the contents of a barn alleged to have been destroyed by fire communicated from one of defendant's locomotive engines. The cause was tried before the court and a jury. Plaintiff recovered judgment for $500, and defendant appealed.

It is alleged that plaintiff, on March 25, 1926, was the owner of certain personal property, corn, fodder, tools, machinery, etc., located on the farm and in the barn of F. M. Shoffner, about one mile south of Bolivar in Polk county; that plaintiff had for some time prior to March 25, 1926, occupied said farm as a tenant; that on the date named, and at about 3 o'clock p. m., fire was communicated from a locomotive engine of defendant to the barn, resulting in the destruction of the barn and its contents, to plaintiff's damage in the sum of $1,200. The answer is a general denial.

Error is assigned (1) on the refusal of an instruction in the nature of a demurrer to the evidence at the close of the case; (2) on instructions given for plaintiff and refused for defendant; and (3) on the admission of evidence.

The barn and contents were destroyed by fire on March 25, 1926, at about 3 o'clock in the afternoon. The barn was located about a mile south of Bolivar. Defendant's railroad runs north and south at the place, and passed east of the barn. The shortest distance between the barn and the track is 709.7 feet. It was 928 feet to the barn from a point 600 feet north on the track from the nearest point. The wind, on the day the barn was burned, was high and from the northeast, and sometimes nearly from the east. It had been dry for about 6 weeks. The dwelling in which plaintiff lived was about 150 feet north and a little east of the barn. The gables of the barn faced east and west. The north side of the barn was covered with shingles which were old and dry. This side of the roof had not been renewed since the barn was built, and was estimated to be from 28 to 40 years old. Approaching on the railroad from the north there is an ascending grade of about one-half mile, and the apex of this grade is somewhat south of the barn. The fire was first seen on the roof at the northeast corner of the barn. About 10 or 15 minutes before the fire was discovered, a south-bound freight train of defendant passed over the track and by the barn. This train consisted of the engine, tender, 13 loaded and 4 empty cars.

Plaintiff testified that at the time of the fire he was plowing immediately west of the barn, and that about 10 or 15 minutes before he discovered the fire a freight train came from the north, pulling hard on the up grade, and that sometimes the train nearly stopped on the grade; that the engine threw off great volumes of smoke, and to such extent that "he could not see the top of the barn, and that, when it cleared away, he saw fire there"; that his attention was caught by the coming in of the heavy volume of smoke, which almost covered the barn over the top; that "he kept watching it all the time until he turned the other end of the row, which was 60 rods long, at which time the smoke from the train had got away, and I seen it had left some fire right on top of the northeast corner of this barn."

Plaintiff further testified that there were two wood stoves in his house, one a heating stove and the other a cookstove; that there had been no fire in the cookstove since morning; that there might have been "a little fire in the heating stove"; that he and his wife were at home alone that day, and that at noon they ate a cold lunch; that on the next morning after the fire he picked up some coal cinders northeast of the barn, some of which cinders were about 100 feet from the barn; that shortly before the fire he had been over the ground where the cinders were, and had not seen them until after the fire.

Mrs. E. C. Clark, plaintiff's wife, testified that the heating stove was a hot blast heater, a coal stove, but that they burned wood in it; that at 6 o'clock in the morning on the day of the fire there was a fire in the cookstove and none after breakfast; "we just let the fire go out;" that there was no fire coming from the chimney; that "she had not built up any fire since the forenoon in the heater or in the cookstove."

Defendant's evidence was substantially as follows: Charles M. Shaw testified that he was engineer on the engine from which it is claimed fire was communicated to the barn; that "the engine threw no more sparks or cinders on the day in question than was usual."

On cross-examination, the engineer testified: That, "on the up grade in question, it takes a little heavier firing. The heavier you work an engine, the more sparks it will throw. There are bound to be some sparks thrown, especially when pulling up grade. If the engine is working hard, the sparks are thrown with greater force than otherwise." That the cinders shown him by plaintiff's counsel could not get through the netting in the front end of the engine. This witness, being recalled, identified a piece of wire netting as the netting from his engine on the day of the fire, and testified that he had noticed that an engine equipped with such netting had thrown sparks and set fire to dry grass 100 or 150 feet from the right of way.

Defendant's evidence tended to show, and nothing to the contrary, that the wire netting or spark arrester with which the engine in question was equipped had three meshes to the inch, and that each mesh was, because of the wires, a little less than one-third of an inch.

O. W. Wilson, a witness for defendant, testified: That "he figured the grade every 500 feet or every 1,000 feet. Starting 3,000 feet north of the barn, the percentage of grade for the first 1,000 feet is 1.14 per cent. (that is to say, 1.14 feet rise in every 100 feet); the next 1,000 feet, the grade is .7 of 1 per cent., or .7 of one foot for every 100 feet; the next 1,000 feet, it would be the first 1,000 feet north of the barn, is .25 of 1 per cent., which is practically level. Starting at the barn going south, the first 1,000 feet is .3 of 1 per cent; the next 400 feet practically level, .1 of 1 per cent.; the next 700 feet is .7 of 1 per cent.; the next 900 feet .6 of 1 per cent. He had measured or calculated the distance that would be the hypotenuse of a triangle from the barn to various points on the track north of a point directly opposite the barn, and had made notations of those distances. Taking a point on the track 500 feet north, the distance to the barn would be 868 feet. From a point 600 feet distant, it would be 928 feet. From a point 700 feet north, the distance would be 996 feet. From a point 800 feet north, 1,069 feet; from a point 900 feet north, 1,146. With the wind blowing exactly northeast from the track, the point on the track in the direct course of the wind would be approximately 708 feet north of the point directly opposite the barn, or a distance of 996 feet from the barn. The railroad runs practically north and south."

Plaintiff introduced evidence as to distances, arrived at by stepping, which would indicate that the track was nearer the barn than the actual measurements show, but in plaintiff's brief the measured distances are adopted, and it was stated on oral argument by plaintiff's counsel that the measured distances were not disputed; hence we accept the measured distances as correct.

The only question presented on the demurrer is whether there is any substantial evidence tending to show that plaintiff's property was destroyed by fire communicated from defendant's engine. We might state here that defendant challenged the competency of the evidence relating to the cinders being found next morning after the fire. We will rule on this question in considering the assignment based on the admission of...