Farmers' Elevator & Grain Co. v. Hines
| Decision Date | 16 June 1922 |
| Docket Number | No. 22443.,22443. |
| Court | Missouri Supreme Court |
| Parties | FARMERS' ELEVATOR & GRAIN CO v. HINES, Director General of Railroads. |
Appeal from Circuit Court, Saline County; Samuel Davis, Judge.
Action by the Farmers' Elevator & Grain Company, a corporation, against Walker D. Hines, Director General of Railroads. From judgment for plaintiff, defendant appeals. Reversed.
J. F. Green, of St. Louis, W. H. Meschede, of Marshall, and Frank W. McAllister, of Kansas City, for appellant.
R. S. Robertson, of Sedalia, and Fyke, Snider & Hume, of Kansas City, for respondent.
Action for damages. Plaintiff owned a grain elevator and warehouse at Sweet Springs, Mo., on and near the right of way of the Missouri Pacific Railway Company. A line of the railroad operated by said. company runs through the town of Sweet Springs, coming in from the northwest and passing out in a southeasterly direction. To the west of the town in Davis creek, and from thence to the southeast there was an upgrade in the track. On September 30, 1918, the elevator, warehouse, and their contents (owned by plaintiff) was destroyed by fire. Plaintiff charges that such fire was communicated by a spark from an engine then in the use of the railroad, as then operated under the federal government. Damages were alleged to be $44,586.77, and an itemized statement thereof made a part of the petition. Upon motion all of the answer was stricken out except the general denial, and a trial before a jury resulted in a verdict for plaintiff in the sum of $40,000, upon which judgment was duly entered. From this judgment the present appeal was taken.
Questions urged go to the admission of evidence, the giving and refusing of instructions, the overruling of the motion for new trial, and a supplemental motion for new trial, the details of which can best be treated in the opinion. This outlines the case.
I. It is strongly urged that there was not sufficient evidence in behalf of plaintiff to take the case to the jury, and for that reason the demurrer to the evidence should have been sustained. This requires a more detailed statement of facts. It is not claimed that defendant's evidence especially patched out the case for plaintiff. If there was a case made for the plaintiff, it was from the evidence upon that side of the case, and not otherwise. Neither are we called upon to reargue the rule of law upon the question. We do not understand the learned counsel for defendant to dispute the usual rule, i. e. that if there is substantial evidence tending to show liability, then the matter is a question for the jury. The facts are therefore the important thing upon the matter of the demurrer to the evidence.
As said, the Missouri Pacific Railway Company's railroad runs through Sweet Springs from the northwest toward the southeast. To the west of the depot some three or four blocks is Davis creek. From this creek toward the southeast there was some grade upward. There were at least two tracks in addition to the main line track. At the depot the main line track runs practically east and west. To the north of the main line track was a passing track, and to the south was an industrial or commercial track which served the elevator of the plaintiff. Parallel with, and about 100 feet south of the railroad tracks was Lexington street, or avenue. Upon this street the warehouse of the defendant fronted. Through it ran two driveways, one upon the eastern side, and the other upon the western side. To the north of the western portion of the warehouse was the elevator, which was partly upon the railroad right of way, and within 4 or 5 feet of this south switch track. The warehouse in which the fire started only ran some 60 feet north from Lexington street, and its north end was some 40 feet south of the railway tracks. Some 50 feet east of the warehouse and fronting on Lexington street was a mule barn. Between the two buildings (in this 50 feet) and to the northwest corner of the mule barn was a small stable. There was a space of some 30 feet between this stable and the east side of the elevator. These we mention to show the open spaces there.
The train accused of the crime was a local freight from the west, and arrived between 4 and 5 o'clock. It was a light train, and on this evening was pulled by a rather heavy engine. It did some switching that evening, and with other work took out a car of wheat and put in a car of coal on this south switch track. There is no direct evidence that in so doing it went as far east as the northeast corner of this warehouse. Plaintiff contends that its evidence shows that there was a strong wind from the northeast, and that the fire began at the northeast corner of the warehouse. That such fire was first observed about 5 minutes after the train backed to the west to the bridge over Davis creek, and from thence pulled out of the town over the main line. There is evidence of the puffing of the engine as it pulled out of town, but no evidence of any sparks being emitted therefrom. There is evidence from two witnesses who are connected with the plaintiff, and who lived to the northeast of the elevator and warehouse some two or three blocks, that they were at their homes and saw the fire, and that it started upon the roof of the warehouse, at the northeast corner thereof. Other testimony tended to show that the fire in fact originated in some baled hay, which was stored near the northeast corner of the warehouse, and spread from thence to the roof. The evidence is therefore conflicting. For the plaintiff it tends to show that the fire started upon the roof near the northeast corner of the warehouse. For the defendant (including some witnesses introduced by plaintiff) it tended to show that it started from within in this baled hay. There was evidence that the driveway door was open, introduced evidently for the purpose of showing that sparks might have passed through it and reached the hay, some distance toward the south. To this theory there is not much substance. To the theory that it caught upon the roof from a spark from the engine there is more substance, and this we discuss later, with other pertinent facts.
II. One of the real questions in the case was whether the fire started in some hay in the warehouse, and from thence to the roof and over the building, or whether it caught upon the roof, near the northeast corner of the warehouse. If it caught in the hay, there was less reason to believe that it could have come from the engine of the train. This, because the hay was some distance back from the northeast corner of the warehouse, and the only way a spark from the engine could reach the hay, would be (1) to come in at the north door of the east entryway and travel back on a level to this baled hay which was stored some distance above the floor, (2) to have whipped upward under the eaves of the roof and passed through openings there, or (3) the bare chance of going through some alleged small cracks in the eastern wall of the building, a thing rather improbable when the building ran north and south and the wind was from the northeast.
However, upon this demurrer to the evidence, we need not discuss this theory of the case, although the preponderance of the evidence tends to show that the fire caught in the hay (upon the inside) rather than upon the roof. There is substantial evidence tending to show: (1) That there is a heavy upgrade going east, and that the engine was pulling hard, and sending up great volumes of smoke; (2) that the engine had worked upon this switch track just before leaving town; (3) that it was pulling hard in pulling up and down the tracks; (4) that very shortly after the train left the fire appeared, and first appeared on the roof near the northeast corner of the warehouse; (5) that a few days before fire had caught upon the roof of the elevator proper, from an engine upon this same local train, as we gather the facts; (6) that there was a strong northeast wind, and that everything was dry. From these facts a jury might draw the inference that the fire came from the engine, in view of the further fact that no fire was being used in the building. No machinery was running. The facts justified a submission of the case to the jury—at least upon the theory that a spark from the engine ignited the roof of the building. It might have strained credulity to have found that a spark from the engine reached this hay through either of the avenues suggested above. But a jury might have believed the two witnesses who said that the fire first caught upon the roof. It suffices to say that at least upon that theory the evidence made a case for the jury.
III. As decided above, there was some substantial evidence that the fire started upon the roof of the warehouse, and not in the hay upon the inside. It is upon this theory that we think the case should have gone to the jury. The demurrer to the testimony being thus disposed of, the errors in the course of the trial become material.
In the course of the trial, and over the objections of defendant, a witness Hicks was permitted to testify as to a fire being communicated to an old warehouse by an engine, some six or seven years previous. He was also permitted to testify that upon that occasion sparks were carried from the railroad track further than the northeast corner of the warehouse, which was burned upon this occasion. There was no claim that it was the same engine, or even the same class of engines. There Is much testimony in this case as to the light tonnage of the train involved here, and nothing as to the tonnage in the train that Hicks saw, save and except it was having trouble to make the grade. There is no evidence in this case that this train was having trouble in making the grade, except that it was pulling hard as it went out eastward. This testimony was too remote, and should not have been admitted. The general rule is thus...
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