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

• Citation: 60 Mo. 227
• Parties: WILLIAM R. COALE, et al., Respondents, v. THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant.
• Decision Date: 31 May 1875
• Court: Missouri Supreme Court

60 Mo. 227

WILLIAM R. COALE, et al., Respondents,

v.THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant.

Supreme Court of Missouri.

May Term, 1875.

Appeal from Buchanan Circuit Court.

M. Oliver, with W. P. Hall, for Appellant.

The prima facie case of negligence could be rebutted by showing that the locomotive doing the damage had the best and most approved machinery in good condition, and was in the care of skilful and prudent men. (37 Mo., 287; 46 Mo., 456; 45 Mo., 352.) Evidence of fires caused by defendant at other times and places is inadmissible, unless it be shown that the other fires were set by the engine causing the damages complained of. (4 Md., 242; I. Redf. Rail., 476.)

H. M. Ramsay, with W. H. Sherman, for Respondents.

The defendant having introduced testimony tending to show that all its engines had been for four years supplied with the most improved machinery and appliances for preventing fire, and that fire could not escape from its engines, it was competent for plaintiff to rebut that testimony by showing the frequent occurrence of fire produced by defendant's passing engines, provided with the same improved spark arresters.

The instructions given by the court, on motion of plaintiffs, were proper, and presented the law under the facts of the case, and, in connection with the instructions given on defendant's side, presented the case fairly to the jury. (See Fitch vs. Pacific R. R., 45 Mo., 322; Bedford vs. Hann. & St. Jo. R. R., 46 Mo., 456; Clement vs. Hann. & St. Jo. R. R., 53 Mo., 366.)

The court properly instructed the jury that plaintiffs were entitled to recover for the negligent burning of the fence by defendant. Plaintiffs, it is true, were tenants on the farm when the fence was destroyed, but as tenants they were answerable to the landlord for the destruction of the fence. (See Mason vs. Stiles, 21 Mo., 378; 4 Kent Com., 77; Tayl. Ld. & Ten., §§ 178, 344.)

VORIES, Judge, delivered the opinion of the court.

This action was brought to recover damages from the defendant for the burning of several stacks of hay and a string of fence, made of posts and planks, alleged to be the property of the plaintiffs, which, it was alleged, was burned by fire escaping from a locomotive used by plaintiff on its railroad.

The defendant, in its answer, does not deny that it is a corporation owning, using and occupying a railroad as is charged in the plaintiffs' petition; but it denies all other material allegations in the petition.

The case was tried by a jury.

The plaintiffs introduced evidence tending to prove that they jointly owned eight stacks and a large rick of hay, situate a short distance north of defendant's railroad, in Buchanan county, State of Missouri; that there were about forty tons of the hay which was worth from $8 to $10 per ton; that on the 20th day of October, 1872, the hay was burned by fire escaping from a locomotive which propelled a train of cars on defendant's railroad, which was run and conducted by the agents of defendant, and which had passed said stacks just before the fire was discovered. The petition alleged that the same fire burned up a fence situate on the farm where the hay was situated; that the fence was constructed of plank and posts; that the fence and farm on which it was situate were the property of Mrs. Corby; that plaintiffs had rented the farm of Mrs. Corby and were in possession of the same as her tenants; that the fence burned was worth over one hundred dollars; that the fire took place about sundown on the evening of the 20th of October, 1872, and the witness though that the train which had just passed was a passenger train, but was not certain.

The defendant, on its part, introduced evidence tending to show that locomotive No. 6, on defendant's road, left St. Joseph on the 20th of October, 1872, propelling a train of cars, about thirty minutes after five o'clock in the evening, and passed the point on the road opposite where plaintiffs' hay was situate about six o'clock in the evening; that it was a passenger train; that said locomotive, No. 6, was a good, safe locomotive; that it was supplied with the most modern and safe chimney and spark arrester in use, and was one of the safest contrivances to prevent the escape of fire from a locomotive running on a railroad, now in use. The evidence further tended to prove that the said locomotive, numbered six, was run by a good, safe engineer, and other employees, etc.

On cross-examination of the defendant's witness by plaintiffs' attorney he stated that the defendant had used the same kind of spark arresters on all of their engines for four years, which was used on said engine numbered six. Only the one witness was examined by the defendant and he was shown to be defendant's master mechanic at the west end of its road.

After the evidence was closed on the part of the defendant, the plaintiffs called two witnesses, of whom he asked the following question, to-wit: “Did you, in the fall of 1872, see any other fires, than the one in controversy, along the line of defendant's railroad, in the neighborhood of the fire started by the defendant's engine?” To this question the defendant objected on the ground that the evidence attempted to be elicited was irrelevant and immaterial, and would not tend to prove the condition of the engine from which the fire escaped which burned plaintiffs' property, or to show that the agents conducting the same, acted carelessly or negligently, or to rebut the evidence of defendant which tended to prove the absence of negligence of the defendant in reference to the engine numbered six, or the agents thereon.

This objection was overruled and the witnesses were permitted to testify that they had known other fires to take place along defendant's railroad in the vicinity of the place where plaintiffs' hay was burned, during the fall of 1872. The defendant at the time excepted.

The court, at the instance of the plaintiffs, gave the jury instructions as follows:

1. “If the jury believe from the evidence, that plaintiffs' hay and fence described in the petition, were burned on or about the time mentioned in the petition, and that the fire which caused the injury sued for was set by or escaped from a railroad engine being run by the defendant on its railroad, then the jury will find for plaintiffs, unless the jury further believe from the evidence that such fire was caused without any negligence on the part of defendant's servants or employees; and the burden of proving such want of negligence rests upon the defendant.”

2. “Though the jury believe from the evidence that the engines of defendant were supplied with a ‘spark arrester’ and other contrivances, to prevent the escape of fire from the engine, of the most approved pattern and style; yet if the jury believe from the evidence that the employees or servants of defendant, operating its locomotive and train of cars at the time of the fire mentioned in the petition, failed or neglected to exercise due care and caution in so operating and running said locomotive and train of cars, and that from such want of due care and caution, the said fire was communicated by said locomotive or train to the hay and fence of plaintiffs, described in the petition, then they will find for the plaintiffs.”

4. “The court instructs the jury that if they believe from the evidence that plaintiffs' property was destroyed by fire, thrown from a passing engine of defendant while being run on defendant's railroad, then the jury may presume negligence on the part of defendant.”

5. “If the jury find for plaintiffs, they will assess the damages at the value of the hay and fence at the time it was burned.”

6. “The jury are the sole judges of the weight of the evidence, and the credibility of witnesses, and if the jury believe any witness has wilfully sworn falsely about any material fact, they may disregard the whole of such witness' testimony.”

The defendant, at the time, objected to all and each of the foregoing instructions, and its objection being overruled it excepted.

The court then, at the instance of the defendant, gave the following instructions:

1. “Defendant is not compelled to provide engines which will absolutely or entirely prevent the escape of sparks or fire, but only such engines as experience has shown to be the best in use.”

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