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

• Decision Date: 06 March 1917
• Docket Number: No. 14494.,14494.
• Citation: 197 Mo. App. 169,193 S.W. 43
• Court: Missouri Court of Appeals
• Parties: DAWSON et al. v. CHICAGO, B. & Q. R. CO.

193 S.W. 43

197 Mo. App. 169

DAWSON et al. v. CHICAGO, B. & Q. R. CO.

No. 14494.

St. Louis Court of Appeals. Missouri.

March 6, 1917.

Appeal from Circuit Court, Monroe County; Wm. T. Ragland, Judge.

Action by Cecil Dawson and another against the Chicago, Burlington & Quincy Railroad Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

O. M. Spencer, of St. Joseph, F. W. McAllister, of Paris, R. S. McClintic, of Monroe City, and M. G. Roberts, of St. Joseph, for appellant. J. P. Boyd, of Paris, Roy B. Meriwether and Robert Meriwether, both of Monroe City, and B. Henwood and Chas. T. Hays, both of Hannibal, for respondents.

REYNOLDS, P. J.

Plaintiffs, averring ownership of the premises upon which the buildings destroyed had been situated, commenced this action against defendant for damages for the destruction of the buildings by fire.

In the petition it is set out that these buildings were near a certain lumber yard owned and operated by the firm of Conway & Proctor (hereafter referred to as the lumber yard), in the city of Monroe; that this lumber yard and its buildings were located and adjacent to the main and switch tracks of the defendant railroad company (referred to for brevity as the Burlington); that on December 26th, 1912, the defendant, while running and operating and controlling a train of cars, the train consisting of an engine and a number of cars, and while running, operating and controlling the train, and while passing through the city of Monroe and near the lumber yard and buildings thereto belonging, carelessly and negligently permitted sparks and coals of fire to escape and be thrown from the engine pulling the train while passing near to and along by the lumber yard and buildings, which sparks and coals of fire set fire to certain buildings and sheds in the lumber yard, and that sparks and coals of fire escaped and were blown from the buildings and lumber yard and set fire to other buildings near to and adjacent to the buildings belonging to plaintiffs, from which sparks and coals of fire communicated to the buildings of plaintiffs and set fire thereto and caused the buildings of plaintiffs to be burned and totally destroyed; that the burning and destruction of the buildings belonging to plaintiffs by the fire so communicated and by which the buildings were burned and destroyed, was the direct and proximate result of the sparks and coals of fire escaping from the engine of the defendant, to plaintiffs' damage in the sum of $2,990, for which, with costs, judgment is demanded.

The answer was a general denial.

The trial was before the court and a jury, resulting in a verdict in favor of plaintiffs in the sum of $2,990, judgment following accordingly. Filing a motion for a new trial and excepting to the action of the court in overruling it, defendant has duly appealed.

At the close of plaintiffs' case in chief and again at the close of all the evidence in the case, defendant interposed demurrers, which being overruled, defendant duly saved exceptions.

Learned counsel for appellant make six assignments of error, but in their printed arguments in chief and in reply, dwell upon four points, namely, that the instruction in the nature of a demurrer to the evidence offered by defendant at the close of all the evidence in the case should have been given, and under this it is argued that the verdict is the result of prejudice and passion as shown by the fact that the verdict was agreed to by only nine jurors; second and third, that certain paragraphs of plaintiffs' instruction defining circumstantial evidence were erroneous and misleading and assumed disputed facts to be true, was a comment on the evidence, invaded the province of the jury, singled out the testimony of two witnesses for the plaintiffs, to the entire exclusion of all of defendant's evidence, and was error as a matter of law; and, fourth, that plaintiffs' instruction No. 3, on the measure of damages, was erroneous. In his oral argument before us the learned counsel for appellant confined himself almost exclusively to the point that the demurrer to the evidence should have been sustained.

It is established by repeated decisions of our courts, Supreme and Appellate, that where a demurrer is interposed to the evidence of plaintiff the demurrer "accepts that evidence as true, whether contradicted or not by defendant's proof, so long as it is not impossible as opposed to the physics of the case or entirely beyond reason. It takes defendant's testimony as untrue where contradicted by plaintiff's proof. It leaves to the jury to settle the weight due the testimony, the credit due the witnesses and to reconcile contradictions, if any, in proof. So, it allows to plaintiff's case the benefit of every reasonable inference of fact arising on all the proof." That, says Judge Lamm, speaking for our Supreme Court in Division No. 1, in Stauffer v. Metropolitan St. Ry. Co., 243 Mo. 305, loc. cit. 316, 147 S. W. 1032, 1035, is a "trite and good doctrine." This was substantially repeated by the same Judge, then speaking for the court in banc, in Williams v. Kansas City Southern Ry. Co., 257 Mo. 87, 116, 165 S. W. 788, 796 , that learned judge there adding when treating of the necessity of substantial evidence to sustain plaintiff's case:

"We say substantial evidence, because the `scintilla' doctrine is no longer the rule in this jurisdiction. It is exploded here as it is in England (Ryder v. Wombell, L. R. 1870, 4 Ex. 31) and as it is as a Federal doctrine (Pleasants v. Fant, 89 U. S. 116 )."

We will apply these rules as the touch-stone to the case at bar.

It appears from the testimony of one of the plaintiffs that the improvements on their lot consisted of a granitoid block building 60×80 feet, with a twelve-foot side wall, two stories through the middle; also a lumber shed 22×46 feet and a coal bin, all of which were destroyed and all built some three years prior to the fire. The lots themselves, this plaintiff testified, were worth from $1250 to $1600, and on the day of the fire the lots and improvements were worth from $4500 to $5000. After the fire the naked lots were worth about $1500, making the value of the buildings destroyed between $3000 and $3,400.

Plaintiffs were engaged in blacksmithing, wagon making and in general repair business. Their buildings were south and a little east of the lumber yard, other buildings being between and in the immediate vicinity. The defendant had and maintained a switch track along the north side of the lumber yard and parallel thereto and north of that was its main track; between the lumber yard and the switch track and the switch track and the main track there was grass, other vegetation and combustible material, all testified to have been very dry at the time of the fire. The rails of the switch track were so close to the north wall of the lumber yard buildings that a car had knocked off part of the northeast corner of one of them. The buildings of the lumber yard were all pine, some parts of them had corrugated iron; the walls were old, decayed and more or less rotten and broken in places. The planks on the lumber yard buildings were set straight up and down; were of white pine, and having been put in green had shrunk, leaving cracks in the walls where one could put a hand or fist through. The length of the lumber yard and its buildings along the right-of-way was about 70 feet. Commencing at the northeast corner of the lumber yard building and at the north wall, was a ten or twelve-foot room, which it subsequently appeared contained a closet; then came a horse stable, with the manger in front, and immediately against the north wall and about 20 feet west of the northeast corner. Going from east to west along the main track of the railroad and through Monroe City there was considerable up grade from east to west. The premises of plaintiffs were about 150 feet from this right-of-way. The day of the fire was rather chilly, the wind high and from the northwest.

One of the plaintiffs testifying, said that he had observed trains passing back and forth frequently on the railroad; had observed freight trains going west coming from the east. Shortly before December 26th, the day of the fire, or shortly after, within approximately a week, witness had occasion to observe freight trains going from east to west along by the lumber yard and to observe whether the engine emitted sparks; had noticed on the evening of the 27th or 28th a freight train pulling up that grade, throwing sparks. Witness was then on the street north of the track and on the north side of that street and saw the sparks from the engine clear over the trees on the south side of the track and saw that they came down through the trees on the north side of the street immediately north of the right-of-way, a half block or a short block north. The weather had been so dry that there was no dew or frost at night. Witness had noticed the growth, that is, grass, etc., between the switch track and the lumber yard, and the switch track and the main track, both just before and after the fire. There was some grass and weeds there and some weeds cut with a mowing scythe. The weeds were cut down and lying there on top — some water grass and weeds there — and between the stubble and the building was grass and weeds and scattered trash, such as hay, which had worked out of the horse barn. There was grass all along between the main track and the switch track. Some of the stubble grass was removed after the fire and left the ground more or less loose, and the roots and grass and hay and weeds showed dead where burned over. Witness had seen the fire on December 26th, 1912, about 20 minutes after noon. It was then burning at the northeast side of the horse barn of the lumber yard. The buildings and contents of the lumber yard were burned to cinder, as were also a machine shop, a livery barn and all of plaintiffs' buildings, including the...