Coates v. Missouri, Kansas & Texas R.R. Co.

Decision Date31 October 1875
Citation61 Mo. 38
CourtMissouri Supreme Court

Appeal from Henry County Circuit Court.

Jno. Montgomery, Jr., for Appellant.

I. Instruction No. 6 for plaintiff states an abstract proposition of law not sufficiently connected with the testimony. (Devitt vs. Pac. R. R., 50 Mo., 302.)

Nor does it permit the jury to determine how far plaintiff's negligence contributed to the damage. It seems to tell the jury that plaintiff“contributed remotely.” (Turner vs. Loler, 34 Mo., 461; Merritt vs. Given, 34 Mo., 98; Ham vs. Barrett, 28 Mo., 388; Rose vs. Spies, 44 Mo., 22.) Plaintiff negligently allowed dry shavings to accumulate in an exposed position near his house, and whether his negligence contributed directly or remotely, is a question for the jury. (Kesee vs. Ch. & N. W. R. R., 30 Iowa, 82.)

II. Instruction No. 5 asked for defendant, should have been given. This proposition is sanctioned by Fitch vs. Pac. R. R., 45 Mo., 324; see also, Kellogg vs. Ch. & N. W. R. R., 26 Wis., 223; Ohio & Miss. R. R. vs. Shanefelt, 47 Ill., 497; Ill. Cent. R. R. vs. Nunn, 51 Ill., 78. III. Instruction No. 4 asked by defendant, should have been given. Its object was to explain to the jury the legal effect of plaintiffs' testimony. The negligence inferred from the escape of fire being rebutted, plaintiffs were bound to prove affirmatively some other act of negligence, in order to recover. (Fitch vs. Pac. R. R., supra;Smith vs. Han. & St. Jo. R. R., 37 Mo., 287; Ill. Cent. R. R. vs. Wells, 42 Ill., 407.)

LaDue & Fyke, for Respondents.

I. The defendant did not offer any evidence to show that at the time of the injury the servants of defendants were conducting themselves or their engine carefully and skillfully. The mere fact that they were generally prudent and careful men, would not rebut the presumption of carelessness raised by proof of the fact that fire did escape from the engine under their charge.

II. The instructions given on the part of plaintiff were evidently correct. The first instruction told the jury that the fact that fire escaped from defendant's engine and consumed the building (and all the facts were admitted by the pleading) were facts from which the jury might infer negligence, and left the burden on defendant. This is the law.

III. The second and third instructions on the part of plaintiff properly instructed the jury as to the degree of care required of defendant. (Bedford vs. Han. & St. Jo. R. R. Co., 46 Mo., 456; Fitch vs. Pac. R. R. Co., 45 Mo., 322.)

IV. The first and second instructions asked by defendant were properly refused, judging from authorities above cited.

V. The sixth instruction given for plaintiff correctly declared the law upon the question of contributory negligence. (Kellogg vs. The Chicago & North Western R. R. Co., 26 Wis., 223.)

VI. The fifth instruction asked by defendants was properly refused. (26 Wis., supra.)

VII. The master mechanic, in his cross-examination, testifies that instructions are given to close the dampers in running over wooden bridges. If an engine can be run over a wooden bridge with the dampers closed, it would certainly be negligence of the grossest kind to pass through a village, when the defendant has suffered grass to remain on its right of way, with the dampers open.

NAPTON, Judge, delivered the opinion of the court.

This action was to recover damages for the burning down of a building in the town of Ladue, by the escape of fire from one of the locomotives of defendant. The basis of the action was negligence and unskillfulness on the part of the employees of the company, in setting fire to the dead grass near the house. The house was a one story frame building, not entirely finished, situated about one hundred feet from the track. It was about twelve o'clock in the day when the fire occurred, and the wind was very high and blowing from the track towards the town. The grass near the track was dry (it was the middle of October), and in front of the house was a workbench, surrounded with shavings.

The plaintiffs proved that the fire was started by coals or cinders from engine No. 25.

The defendant then introduced witnesses who stated that the engineer and firemen of No. 25 were competent, skillful, reliable and careful officers, and that engine No. 25 was a first class engine in all respects and supplied with every improvement, down to the latest, for preventing the escape of fire. The master mechanic stated that it was impossible to run an engine without keeping the dampers open; “that the ash pan was immediately under the grate, and the motion of the train shakes the ashes and coals through the grate into the ash pan, and the dampers are at each end of the ash pan, and of course when opened the wind sweeps the fire out of the ash pan on the track.” The witness stated that no mode has ever been devised as yet to prevent this, and that fire must escape from the best of engines.

The court gave the following instructions at the instance of the plaintiff:

1. The court instructs the jury on the part of the plaintiff, that the fact of fire escaping from defendant's engine, lighting upon and igniting the dead and dry grass, and other combustible matter, suffered by the defendant to accumulate upon its right of way adjoining plaintiff's property in the town of Ladue, and, by spreading, communicated to plaintiff's property and destroyed the same, are facts from which the jury may infer negligence on the part of defendant's agents, officers and servants, and leaves the burden of exonerating them on defendant.

2. It is the duty of every man so to use his own property as not to cause injury to that of his neighbor, and the fact of fire escaping from the engine of a railroad company and communicating to the property of others is a fact to be considered by the jury in determining the question of negligence on the part of defendant. And if the jury believe from the evidence that the defendant. its officers, agents or employees, negligently permitted fire to escape from the engine of defendant, and that it communicated to and destroyed or consumed the property of plaintiffs, as alleged in the petition, they will find for plaintiffs and assess the damages at such sum as the jury may believe from the evidence the store was reasonably worth.

3. The court instructs the jury on the part of the plaintiff, that the defendant in the case was bound to a degree of care and diligence in proportion to the degree of damage, and the probable extent of injury to the property of others in case of negligence, and if the jury believe from the evidence that the defendant, its agents or servants, or employes failed to exercise that degree of care and caution which they might have done under the circumstances, in consequence of which fire escaped from the engine of the train in their use, and communicated to and burned the property of the plaintiff, as alleged in the petition, then they will find for the plaintiffs.

4. The question whether the injury sustained was too remote or consequential, is for the exclusive determination of the jury, and the fact of the house being situated some distance from the railroad track of defendant will not prevent a recovery on the part of plaintiffs, if the jury believe it was one continuous fire from the place where it ignited in the grass to the house.

5. The court further instructs the jury that the question of negligence and carelessness on the part of the defendant, its agents, servants, etc., is a fact to be determined by the jury from all the evidence.

6. The court instructs the jury that although the plaintiffs may have been guilty of some negligence in suffering the shavings to accumulate around the store-house, which may have contributed remotely to the destruction of their property, yet if de...

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