Erhart v. Wabash Ry. Co.

• Decision Date: 19 April 1909
• Citation: 118 S.W. 657,136 Mo. App. 617
• Parties: ERHART v. WABASH RY. CO.
• Court: Missouri Court of Appeals

118 S.W. 657

136 Mo. App. 617

ERHART v. WABASH RY. CO.

Kansas City Court of Appeals. Missouri.

April 19, 1909.

Rehearing Denied May 3, 1909.

1. RAILROADS (§ 484)—FIRES—QUESTION FOR JURY.

In an action against a railroad company, the question whether the fire was communicated by sparks from defendant's engines held for the jury.

2. EVIDENCE (§ 158)—BEST EVIDENCE—FIRES — OWNERSHIP OF BUILDING — PAROL EVIDENCE.

In an action against a railroad company for destruction of a building by fire, plaintiff's testimony that she owned and occupied the building was competent evidence of title; for, while title to realty cannot ordinarily be proved by

parol, possession under claim of title is prima facie evidence of title against a stranger.

3. DAMAGES (§ 64)—DESTRUCTION OF BUILDING—REDUCTION BY INSURANCE.

A railroad company destroying buildings by fire cannot reduce the owner's recovery therefor by showing that he received insurance; the railroad company being a stranger to the insurance contract.

Appeal from Circuit Court, Macon County; Nat. M. Shelton, Judge.

Action by Sarah C. Erhart against the Wabash Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

J. L. Minnis and Robertson & Robertson, for appellant. C. A. Barnes and Fyke & Snider, for respondent.

BROADDUS, P. J.

This action is to recover damages for the burning of plaintiff's houses, furniture, and trees on her premises. The trial resulted in a judgment for plaintiff in the sum of $1,600, from which defendant appealed.

The appellant's first contention is that under the pleadings and testimony the plaintiff did not make out a case for recovery. The fire occurred on the 16th day of September, 1907, in Centralia, at about the hour of noon. The fire was communicated to plaintiff's house from sparks from a burning building near the tracks of the defendant's railroad, which plaintiff claims was set afire by sparks emitted by defendant's engines. The burning building which set fire to plaintiff's house was what was known as the Priebe-Simetar poultry house, and was situated about 100 feet north of defendant's main track and about 75 feet north of defendant's switch tracks. The poultry house was a frame structure with a shingle roof, was 60 feet long by 20 feet wide, with an ell 20 feet by 32 feet joined onto the north side. At the time it was occupied by Swift & Co., who were engaged in the egg and poultry business. The main part of the building was two stories high without any ceiling between the upper floor and the roof. This upper story was occupied as a place of storage for lumber for egg cases and empty barrels. It was shown that a short time before the fire, which burned the building and which occurred at about 10:30 o'clock a. m. of the day, two of the defendant's engines were engaged in switching nearby. There was evidence that the engines of the defendant while in operation threw out sparks, but no one seemed to have noticed that they did so on the occasion in question. There was a brisk and somewhat variable wind blowing from the south and southwest at the time. Plaintiff introduced evidence tending to show that the fire was first discovered in the roof and near the southwest corner. There was evidence to the effect that engines attached to passing trains sometimes threw out cinders as far as the poultry house in question. A witness testified that the roof was dry and much dilapidated, with holes in it sufficient to admit the light. The defendant's evidence tends to...