Dawson v. Chicago, Burlington & Quincy Railroad Co.

• Decision Date: 06 March 1917
• Citation: 193 S.W. 43,197 Mo.App. 169
• Parties: CECIL DAWSON et al., Respondents, v. CHICAGO, BURLINGTON AND QUINCY RAILROAD COMPANY, Appellant
• Court: Missouri Court of Appeals

193 S.W. 43

197 Mo.App. 169

CECIL DAWSON et al., Respondents, v. CHICAGO, BURLINGTON AND QUINCY RAILROAD COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

March 6, 1917

Argued and Submitted, February 8, 1917

Appeal from Monroe Circuit Court.--Hon. William T. Ragland, Judge.

AFFIRMED.

Judgment affirmed.

O. M Spencer, F. W. McAllister, R. S. McClintic, J. C. Carr and M G. Roberts for appellant.

(1) The instruction in the nature of a demurrer to the evidence offered by the defendant at the close of all the evidence in the case should have been given for the following reasons (a) Section 20 of the Interstate Commerce Act provides that any person who shall wilfully make a false entry in any record or memoranda kept by an interstate carrier, or who shall wilfully alter or falsify the record of any such record or memoranda, or who shall willfully neglect or fail to make true and correct entries therein, shall be deemed guilty of a crime and is subject to imprisonment. The statute further provides that the Commission may prescribe the forms of the records and memoranda "of the movement of traffic" and the Commission is authorized to make an order specifying such operating records, blanks or discounts which the carrier may destroy after a reasonable time. Pursuant to this power the Commission made an order requiring such records, of which the courts will take judicial notice. The books, records and papers introduced by the defendant in this case are not private memoranda, but are public documents, in which true and correct entries are required to be made under penalty of law. All these records introduced in this case tally with and dove-tail into one another so accurately and correctly that they carry in themselves their own inherent evidence of absolute verity and utterly destroy plaintiffs' claim that a train passed Monroe at noon on December 26, 1912. Caha v. United States, 152 U.S. 211, 222. When the testimony is in the form of documents, the advantage which a jury is supposed to have over an appellate court in passing upon the evidence does not exist. Neil v. Cunningham Store Co., 149 Mo.App. 43, l. c. 58. (b) The defendant recognizes that in passing upon a demurrer to the evidence the oral proof of the plaintiff must ordinarily be taken as true and the defendant's oral testimony in conflict therewith must be assumed to be false. However, in this case the circumstances shown by the plaintiffs to establish their theory (even assuming a train passed), are in harmony and consistent with the defendant's theory of the origin of the fire. When an inference that the fire was not communicated from a locomotive is as strong as the inference that it was so caused, the plaintiff is not entitled to recover. Bates County Bank v. Missouri P. Ry. Co., 98 Mo.App. 330, l. c. 336; Peck v. Missouri P. Ry. Co., 31 Mo.App. 123; Hudspeth v. St. Louis & S. F. R. Co., 1726 Mo.App. 579, l. c. 585, 586. (c) While under the Missouri statute a railroad company is liable for property destroyed by fire communicated directly or indirectly by locomotive engines, yet the plaintiff must still prove that the fire was actually communicated to his property by one of defendant's locomotives. Foster v. Missouri P. Ry. Co., 143 Mo.App. 547, l. c. 553; Fritz v. St. Louis, I. M. & S. Ry. Co., 243 Mo. 62; Hudspeth v. St. Louis & S. F. R. Co., 172 Mo.App. 579; Kelly v. Wabash R. Co., 151 Mo.App. 306; 33 Cyc. 1384, 1385; 13 Am. & Eng. Ency. of Law (2 Ed.), p. 512; Taylor v. Lusk, Mo.App. , 187 S.W. 87, l. c. 98; Vanderburgh v. St. Louis & S. F. R. Co., 146 Mo.App. 609. (d) Where the testimony and all the surrounding circumstances in the case are such as to raise a strong inference or presumption that the verdict of the jury was the result of partiality, prejudice or passion, the appellate courts will not hesitate to set the verdict aside. In this connection the court will consider that but nine jurors concurred in the verdict. Copeland v. American Central Insurance Co., 191 Mo.App. 435, l. c. 448. In each of the following cases the appellate courts set aside the verdict because the preponderance of the evidence against the verdict was so strong as to raise a presumption of prejudice, bias or corruption on the part of the jury: Lehnick v. Metropolitan St. Ry. Co., 118 Mo.App. 611; Gage v. Trawick, 94 Mo.App. 307; Friesz v. Fallon, 24 Mo.App. 439; Holt v. Morton, 53 Mo.App. 187; Hewitt v. Doherty, 25 Mo.App. 326; Lionberger v. Pohlman, 16 Mo.App. 392; Walton v. Kansas City, Ft. S. & M. Ry., 49 Mo.App. 620; Empey v. Grand Ave .Cable Co., 45 Mo.App. 422; Tucker v. Chicago & A. R. Co., 66 Mo.App. 141; Cook v. Missouri P. Ry. Co., 94 Mo.App. 417; Kennedy v. St. Louis T. Co., 103 Mo.App. 1; Spiro v. St. Louis T. Co., 102 Mo.App. 250; Harper v. St. Louis & S. F. R. Co., 186 Mo.App. 296; Garrett v. Greenwell, 92 Mo. 120; Spohn v. Missouri P. Ry. Co., 87 Mo. 74. (2) The second paragraph of plaintiff's instruction No. 2 defining circumstantial evidence, being the only definition of circumstantial evidence given to the jury and in which the jury were told that the burning of the building by sparks might be established by showing "such other facts and circumstances as will fairly and naturally lead to the inference of their existence, and it does not devolve upon the plaintiffs to produce proof excluding other possible origin of said fire," was palpably erroneous and misleading for many reasons: (a) It is not a correct definition of circumstantial evidence in civil cases. Evidently the writer of this paragraph had in mind what was necessary to be shown in order to have the cause submitted to the jury. It is one thing to say as a legal proposition what facts and circumstances are sufficient to "get by" a demurrer so that the case will reach a jury; but it is quite another thing to properly define circumstantial evidence in an instruction when the case is finally submitted to the jury. The second clause of plaintiffs' instruction No. 2 was plainly wrong for this reason. Copeland v. American Central Ins. Co., 191 Mo.App. 435, 452; Price v. St. Louis, I. M. & S. Ry. Co., 185 Mo.App. 432, 436; Rice v. Detroit Fire and Marine Ins. Co., Mo.App. , 176 S.W. 1113, 1119; Taylor v. Lusk, Mo.App. , 187 S.W. 87, 98; Culbertson v. Hill, 87 Mo. 553, 556; Foster v. Missouri P. Ry. Co., 143 Mo.App. 547, 552; Fritz v. St. Louis, I. M. & S. Ry. Co., 243 Mo. 62, 77. Plaintiffs' counsel evidently used the language of this court in Gibbs v. St. Louis & S. F. R. Co., 104 Mo.App. 276, 281, but the court was there discussing the sufficiency of the evidence on the presentation of a demurrer and not the elements of an instruction to the jury on circumstantial evidence. See, also, Tapley v. St. Louis & H. Ry. Co., 129 Mo.App. 88, 92. (b) To justify a finding upon circumstantial evidence that the property was destroyed by locomotive sparks, the facts and circumstances must be such as to satisfy the minds and consciences of the jury to a reasonable certainty that the fire was in fact caused by sparks and not merely by proof of "facts and circumstances leading thereto." See authorities under subdivision a; Copeland v. American Central Ins. Co., 191 Mo.App. 435, 452; Taylor v. Lusk, Mo.App. , 187 S.W. 87, 98; Price v. St. Louis, I. M. & S. Ry. Co., 185 Mo.App. 432, 436. (c) The clause to the effect that "it does not devolve upon the plaintiffs to produce proof excluding other possible origin of said fire" was erroneous and misleading, because in attempting to give a definition of circumstantial evidence in this class of cases, plaintiffs should have asked a correct one. When a plaintiff is seeking to show that his property was destroyed by sparks from a locomotive engine by proof that a train passed and that soon thereafter fire was discovered, i. e., circumstantial evidence, he must go further and produce evidence tending to show that it was impossible for the fire to have resulted from some other cause. Fritz v. St. Louis, I. M. & S. Ry. Co., 243 Mo. 62; 33 Cyc. 1384, 1385; 13 Am. & Eng. Ency. of Law (2 Ed.), p. 512; Vanderburgh v. St. Louis & S. F. R. Co., 146 Mo.App. 609; Hudspeth v. St. Lous & S. F. R. Co., 172 Mo.App. 579; Kelly v. Wabash R. Co., 151 Mo.App. 306; Elliott on Railroads, sec. 1243; Foster v. Missouri P. Ry. Co., 143 Mo.App. 547, 553; (d) The last mentioned clause of said instruction is also calculated to mislead the jury by leading them to believe they could ignore evidence tending to show other possible causes of the fire. (3) The third paragraph of plaintiffs' instruction No. 2 in which the court charged the jury that if they found that sparks were emitted from the locomotive of a passing train and that shortly thereafter fire was seen to start on the right-of-way in vegetation, they might, from these facts, infer that the destruction of plaintiffs' property was caused by a spark, 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 the defendant's evidence, and was, in addition, erroneous as a matter of law. Similar instructions have been repeatedly condemned by the Missouri courts for the following reasons: (a) When the law presumes a fact from one or more other facts, then the court may so instruct the jury; but a court is never warranted in telling the jury what conclusions of fact they may draw from some other fact or collection of facts, for it is the sole province of the jury to draw inferences of fact and not of the court. McDermott v. Barnum, 19 Mo. 205, 207; Lesser v. Boeckhoff, 33 Mo.App. 223, 237; Steinwender v. Creath, 44 Mo.App. 356, 366; Gilliam v. Ball, 49 Mo. 249; 38 Cyc. 1672; McQuillin on Instructions, sec. 113, p. 84, Sec. 118, p....