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

• Decision Date: 31 August 1873
• Citation: 53 Mo. 366
• Parties: JOHN CLEMENS, Appellant, v. THE HANNIBAL AND ST. JOSEPH R. R. Co., Respondent.
• Court: Missouri Supreme Court

53 Mo. 366

JOHN CLEMENS, Appellant,

v.THE HANNIBAL AND ST. JOSEPH R. R. Co., Respondent.

Supreme Court of Missouri.

August Term, 1873.

Appeal from Linn Court of Common Pleas.

S. P. Huston, for Appellant.

I. The negligence of the respondent was sufficiently shown to make at least a prima facie case. (Shearm. and Redf. on Neg., 396, § 333; Redf. Railroad., 465; 42 Ill., 407; 45 Mo., 322; 46 Mo., 456.)

II. The damages are not too remote. (Shearm. and Redf., Neg., 667, 669, §§ 594, 596; Sedgw. Meas. of Dam., Marg., pp. 58 and 59; Sharp vs. Powell, 2 Eng., 567; Kellogg vs. R. R. Co., 26 Wis., 225; 53 Ill., 451; Fent vs. Toledo R. R. Co., Ill. Sup. Ct., June 28th, 1872; Flynn vs. The San Francisco R. R. Co., 6 Am. R., 595; 53 Ill., 451.)

James Carr, for Respondent.

I. The appellant is not entitled to recover without showing negligence. This he totally failed to do. (Smith vs. Han. & St. Jo. R. R. Co., 37 Mo., 287.)

II. The damages are too remote. (Penn. R. R. vs. Kerr, 62 Pa., 353; 1 Am. Rep., 431; Ryan vs. New York Central R. R., 35 N. Y. 210.)

VORIES, Judge, delivered the opinion of the court.

This action was brought to recover damages for the burning of the plaintiff's fencing and meadows by the carelessness of defendant's employees.

The petition is in the usual form, charging that the defendant was a corporation owning a railroad running near the plaintiff's farm, and that while defendant's locomotive and cars were being run past and near plaintiff's farm, by the carelessness of the defendant's servants and agents, having charge of said locomotive and cars, fire was permitted to escape therefrom, which set fire to plaintiff's fencing and meadow, by which he was damaged; and he claimed judgment therefor.

The defendant's answer admits that it is incorporated, and that it operates and runs locomotives and cars on its road, &c., but denies the negligence of its servants, and all other material allegations in the petition.

The evidence given for the plaintiff on the trial tended to prove; that plaintiff owned a farm in Linn county, State of Missouri; that defendant's railroad passes near said farm; that at the place where the fire is charged to have taken place, there is a strip of land lying between the railroad and plaintiff's farm and fence, from eight to ten rods wide; that this strip, at the time of the fire, was covered with dry grass; that as the cars and locomotive of the defendant passed, at the time named, fire escaped therefrom, and set fire to this grass and combustible matter on this strip of land opposite to the plaintiff's field; that the fire was started about twenty feet from the track of the road, and extended to plaintiff's field and meadow, and consumed his rails and hay, which were of the value of over one hundred dollars; that owing to the grass, and its dry condition at the time, though good efforts were made to stop the fire, it could not be stopped by plaintiff and others, until after it communicated with plaintiff's field and burned the same. After plaintiff had given evidence to prove the facts above stated, he closed his case; when the defendant moved the court to instruct the jury, “That admitting all the evidence adduced by the plaintiff to be true, the plaintiff has made no case, and they will find for the defendant.” This instruction was given by the court, after which the plaintiff took a non-suit, with leave to move to set the same aside.

In proper time the plaintiff filed his motion to set aside the non-suit taken, and to grant the plaintiff a new trial, assigning as a reason therefor the action of the court in instructing the jury to find for the defendant. This motion being overruled, the plaintiff excepted, and appealed to this court.

The only question presented here is, whether the facts proven in the case, or the facts which the evidence tended to prove in this case, were sufficient to make a prima facie case in favor of the plaintiff. The counsel for the defendant insists, that it was necessary for the plaintiff to introduce some evidence of negligence on the part of the servants of the defendants, other than that the fire had escaped from their locomotive, which burned the plaintiff's fencing; that there must be some direct evidence tending to show negligence, in addition to the evidence that the fire had escaped from the locomotive of defendant, while it was passing near plaintiff's field. There is no doubt that the authorities are conflicting on this subject. In some courts it has been held, that evidence of actual negligence must be shown, while in other States it has been held, that negligence may be found by the jury from the fact, that the fire escaped from the locomotive that caused the injury, and that it devolves on the defendant in such case, in order to rebut the presumption of negligence, to prove that it was using proper and safe locomotives and engines, and that its servants were conducting them in a proper and safe way. I think that the latter doctrine is the correct one. We may safely presume, that railroad companies are not running locomotives on their roads, the natural or probable effect of which would be to set fire to the farms of those who resided along the road, if they were carefully managed; from which the natural presumption would be, that when fire escaped and burned up the farms along the road, it proceeded from negligence. If it should be held otherwise,...