Fields v. Missouri Pacific Railway Company
| Decision Date | 05 June 1905 |
| Citation | 88 S.W. 134,113 Mo.App. 642 |
| Parties | BETTIE M. FIELDS, Respondent, v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. James Gibson, Judge.
AFFIRMED.
Cause affirmed.
Elijah Robinson for appellant.
(1) A verdict will not be permitted to stand unless it be supported by substantial evidence. Blumenthal v. Torini, 40 Mo. 159; Rea v. Ferguson, 72 Mo. 225; Crane v Timberlake, 81 Mo. 481; Avery v. Fitzgerald, 94 Mo. 207; Long v. Moon, 107 Mo. 334; McFarland v Accident Assn., 124 Mo. 204; State v. Bryant, 134 Mo. 246; Hewitt v. Steele, 136 Mo. 327; Cole v. Armour, 154 Mo. 333; Ashley v. Green, 38 Mo.App. 292; Kehoe v. Phillipi, 42 Mo.App. 292; Heintz v. Mertz, 58 Mo.App. 405. (2) Where a verdict is against every reasonable probability, that might result from the evidence in the case, the inevitable conclusion must be that it was the result of partiality or prejudice on the part of the jurors, and a judgment based on such verdict must be reversed. Jeans v. Morrison, 99 Mo.App. 208; Gage v. Trawick, 94 Mo.App. 307; Cook v Railway, 94 Mo.App. 417; Baker v. Stonebreaker, 36 Mo. 345; Price v. Evans, 49 Mo. 396; Bautrain v. Railroad, 78 Mo. 44; Rosecrans v. Railroad, 83 Mo. 678; Spohn v. Railway, 87 Mo. 74; Cannon v. Moore, 17 Mo.App. 92. (3) It has often been decided and never controverted, that a verdict which must necessarily have been the result of a mere guess or conjecture on the part of the jurors ought not to be permitted to stand. Moore v. Railway, 28 Mo.App. 622; Peck v. Railway, 31 Mo.App. 123; Peffer v. Railway, 98 Mo.App. 291; Shertle v. Railway, 97 Pa. St. 450. (4) The trial court committed error in permitting witness Nickell to testify that he had never heard witness Faust make any statement about having heard tramps say they would sleep in the barn at night.
George B. and Sam B. Strother for respondent.
(1) If there is any evidence, however slight it may be and whether direct or inferential, it must go to the jury, who are the exclusive judges of its weight and sufficiency. Twohey v. Fruin, 96 Mo. 104, 109; Charles v. Patch, 87 Mo. 450, 462; Rice et al. v. Sally, 176 Mo. 107, 145. (2) "In passing upon a demurrer to the evidence, the court is required to make every inference of fact in favor of the party offering the evidence, which a jury might, with any appearance of propriety, have inferred in his favor." Buesching v. Gaslight Co., 74 Mo. 219-231; Ecton v. Ins. Co., 32 Mo.App. 53-59; Fisher v. Railway, 23 Mo.App. 206; Hanna v. Ins. Co., 56 Mo.App. 582-585; Smith v. Hutchinson, 83 Mo. 690; Donohue v. Railway, 91 Mo. 357-360; Twohey v. Fruin, 96 Mo. 105-109; Davis v. Clark, 40 Mo.App. 515-520; George v. Railway, 40 Mo.App. 433; Berry v. Railway, 124 Mo. 223-244-245. (3) There were ample facts, facts from which the court or jury might have reasonably inferred, that the fire was caused directly or indirectly from one of the appellant's locomotives. Wright v. Railway, 80 S.W. 927; Kinney v. Railroad, 70 Mo. 243; Redmond v. Railroad, 76 Mo. 550; Sappington v. Railroad, 14 Mo.App. 86; Torpey v. Railroad, 64 Mo.App. 382; Campbell v. Railroad, 121 Mo. 340; Myers v. Trust Co., 82 Mo. 237; Walker Bros. v. Railroad, 68 Mo.App. 465; Mathews v. Railroad, 142 Mo. 645.
This is a suit for damages for the destruction of plaintiff's barn and hay therein by fire alleged to have been started by sparks emitted from one of defendant's locomotive engines. The fire occurred at about 5:30 p. m., October 27, 1903, near Lee's Summit, Mo.
The testimony shows that the barn in question was situated on the west side and about 850 feet from defendant's tracks which ran nearly north and south with reference to said barn. No one testified seeing the sparks communicated to the barn. There was evidence that a freight train passed about 4 o'clock p. m.; and other evidence that no such train passed at that time, but that a passenger train passed at 4:13 o'clock. The witness who testified that a freight train had passed at the time stated, testified also that soon thereafter he saw a small fire burning in the grass near defendant's tracks. No witness saw the barn on fire until about 5:30 o'clock p. m., at which time it had gained considerable headway. Between the railroad track and barn was a field in which were stalks and grass which was burned over to within 180 to 215 feet of the barn. In order to have reached the barn the sparks from this burning field necessarily had to pass over this space. It was shown that the wind was blowing from southeast to southwest which would carry the sparks from the field towards the barn. The evidence from the government weather bureau was, that at the time named the wind was blowing at Kansas City (about twenty miles distant) from a southeasterly to a southwesterly direction at a velocity of from seven to eight miles an hour, and that the speed and direction would be about the same at Lee's Summit--but there might be some difference in the two places. The evidence of witnesses at Lee's Summit was that the wind was, in the language of one of them "pretty strong." It was shown that the grade at the point where the fire was first seen was slightly upward, and that trains in passing at times threw out sparks.
The contention of appellant is that under the evidence plaintiff was not entitled to recover. If we consider only defendant's testimony its position is correct. But we are to take into consideration all the evidence--that of plaintiff as well as that of defendant--and if there was any substantial testimony upon which to base the verdict, we are bound by it. And it can make no difference notwithstanding there was much evidence to the effect that the field in question had been burned over before the day in question, and that if defendant's witnesses are to be believed the fire could not have been communicated at the time claimed by plaintiff. Nor are we to take as conclusive the evidence of defendant's agents that its engines were in good repair--the netting and appliances in good condition--and consequently its smoke stack did not emit sparks.
The defendant submitted a demurrer to plaintiff's case which the court overruled. We are cited to numerous cases by defendant as parallel with this to show that plaintiff was not entitled to recover. But in cases of this kind the facts are nearly always different. Upon a given state of facts the court declares the law. It is the application of the law to the facts that gives rise to difficulties. And when the question is raised that plaintiff has not proven his case, the court must look to his evidence; and if there is any substantial testimony to support its allegations, the question is one for the jury--otherwise, it is a question for the court. In a case like this, where the action depends upon circumstantial evidence, the rule is that the circumstances must form a connected chain pointing to a single conclusion, or a number of independent circumstances pointing in the same direction, or verging to a common center.
The chain of circumstances is as follows: The locomotive attached to a freight train was seen to pass going up grade; in a few minutes a fire is discovered in the dry vegetation along defendant's right of way; an adjoining field is covered with dry grass and cornstalks; this vegetation is found burned over to within two hundred feet of plaintiff's barn; within one and one-half hours after the fire was first discovered along the right of way this barn was on fire; and during all the while the wind was blowing from the fire in the direction of the barn. These circumstances all point one way. From them we may infer that the locomotive going up grade emitted sparks which fell upon the dry grass and set it afire, which spread and communicated to the dry material in the field and which fire, driven by the wind which directed it towards the barn,...
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