Frame v. Kansas City, C. & S. Ry. Co.

• Decision Date: 25 February 1919
• Docket Number: No. 2406.,2406.
• Citation: 209 S.W. 314
• Court: Missouri Court of Appeals
• Parties: FRAME v. KANSAS CITY, C. & S. RY. CO.

209 S.W. 314

FRAME v. KANSAS CITY, C. & S. RY. CO.

No. 2406.

Springfield Court of Appeals. Missouri.

February 25, 1919.

Appeal from Circuit Court, Greene County; Guy D. Kirby, Judge.

Suit by Mary E. Frame against the Kansas City, Clinton & Springfield Railway Company. Verdict for defendant, new trial granted, and defendant appeals. Order affirmed.

John H. Lucas, of Kansas City, for appellant. John Schmook and George W. Goad, both of Springfield, for respondent.

STURGIS, P. J.

Plaintiff sued under section 3151, R. S. 1909, to recover for the loss by fire of her dwelling house and contents, smokehouse, and shade trees. The issues were submitted to a jury, and verdict returned for defendant. The trial court sustained a motion for a new trial on the ground that the verdict was contrary to the evidence. Unsuccessful in getting the order for a new trial set aside, defendant appealed.

Plaintiff charges in her petition that on the 22d day of February, 1917, she was the owner and in the possession of a certain lot in Ash Grove, Mo.; that on said date there were situated on said lot a two-story frame dwelling house and a smokehouse, fences, and shade trees; that she was the owner and in the possession of certain household goods and other personal property in said dwelling house and smokehouse; that the defendant on said date owned and operated a railroad through said town of Ash Grove; that said railroad was near to and adjoined plaintiff's property ; and that on said date fire was communicated from a locomotive engine of defendant to plaintiff's premises, destroying the dwelling house and contents, smokehouse and contents, and the fences, and damaging her trees. The answer was a general denial.

The action of a trial court in granting a new trial on the ground here given rests in sound discretion, and will not he disturbed unless it appears that this discretion has been exercised in an arbitrary or improvident manner. Rodan v. Transit Co., 207 Mo. 392, 105 S. W. 1061. An appellate court will sustain the action of a trial court in granting a new trial on the weight of the evidence, where the verdict would have been allowed to stand if such verdict had been In favor of the party to whom the new trial was granted. State ex rel. Railroad Co. v. Ellison et al. 268 Mo. 225, 186 S. W. 1075. The only question then for us to determine is: Was there any substantial evidence tending to show that fire was communicated to plaintiff's house from defendant's engine? Defendant challenged the sufficiency of the evidence at every step.

There was no direct evidence that the fire was communicated from defendant's engine ; but there are certain facts and circumstances which plaintiff contends tended to establish that the fire was so communicated. These circumstances are as follows: Defendant's railroad runs practically east and west by plaintiff's premises. The house destroyed was a two-story frame, square in shape, shingle roof, fronted west, and located back from the street 25 or 30 feet, on a lot 75 by 150 feet, and the house was located 25 or 30 feet from the south side of the lot. The lot joined the railroad right of way, and the main track is 50 to 60 feet south of the house. One witness said this house and another on opposite sides of the railroad were about 75 feet apart.

The train which it is alleged communicated the fire was a local freight, and arrived at Ash Grove from the north about 7 p. m. on February 22, 1917. The time that elapsed from the arrival of the train at Ash Grove until the fire was discovered was estimated all the way from 30 minutes to an hour, and the jury would be justified in finding the minimum time. The weather at the time was warm and dry for the season, and considerable wind was blowing from the south; that is, from the railroad toward plaintiff's house. There were two brick flues in the house, one extending from the kitchen and one from the living room. Both flues extended through the roof near the middle thereof. There had been no fire in the range in the kitchen since the noonday meal, and the fire in the heating stove in the living room at about 7 o'clock, when plaintiff and the other members of the family left the house, was low. The fire was first discovered on the south slope of the roof next to the railroad and some distance away from either of the flues. There was some evidence that defendant's engine on the occasion in question was throwing sparks as it came in east of plaintiff's house, and that it threw sparks after it had passed plaintiff's house some 500 feet. Also, one witness testified that she did not see the train pass but heard it, and that the blower on the engine was working. Also, there was evidence, that on other occasions defendant's engines had emitted sparks while passing plaintiff's premises, and on one occasion some of the premises had been fired ; but these occasions were remote in time and when the train was going in the opposite direction and upgrade.

The evidence offered on behalf of defendant tended to show that the train was on downgrade as it passed plaintiff's house, that the blower was not working, and no sparks were being emitted. The engineer of the train testified that he passed plaintiff's property about 7 o'clock p. m. on a downgrade and did not have the steam working; that there were no sparks being emitted from the locomotive; that when the steam was shut off there is no exhaust and no effect on the fire; that it is downhill five or six car lengths beyond plaintiff's house, and the blower is used to raise the steam when standing, or running a grade, to replenish the draft when the engine is not in use; that it is about 500 feet from plaintiff's house to where steam would be put on. The fireman, conductor, and brakeman testified substantially to the same effect. One witness testified that she passed the house shortly before the fire was discovered and noticed no fire, that she walked three or four blocks and looked, and the house was on fire on the roof. Another witness saw the train pass, but saw no sparks ; said that he would likely have seen sparks had there been any. Another witness was about 50 yards north of plaintiff's house when the train passed, saw it pass, but saw no sparks.

The evidence of defendant that no sparks were flying from this engine as it passed plaintiff's house is based largely on the ground that the engine was going downgrade and was not working steam. If, however, the blower was working, as one witness testified, the effect would be much the same as to throwing sparks. There is also evidence that this engine was actually throwing sparks some 300 or 400 feet before it reached plaintiff's house, and was then and had been for a mile or more coming downgrade. The train would start upgrade a short distance beyond plaintiff's house, and, if the blower was working and sparks flying before and after reaching this house, it is almost certain that this condition would continue in preparation for the coming grade. The defendant's evidence is not in fact to the contrary of this, but only that at no time coming down this grade were sparks flying. There is therefore substantial evidence that sparks were being thrown from this engine as it was passing plaintiff's house.

Another significant fact which a jury might well find from the evidence is that this fire started on the roof and burned downward. Many witnesses testified to this fact. The witness who first saw the fire says that the burned place on the roof was not larger than a tub. The only stove having fire in it was downstairs and was removed from the house along with most of the furniture, and there was no indication of fire from that source.

It must be kept in mind that plaintiff is not required to show any negligence on defendant's part causing this fire, but only that the fire in fact originated from sparks from its passing engine. Section 3151, R. S. 1909; Fritz v. Railroad, 243 Mo. 62, 76, 148 S. W. 74.

Considering the evidence most favorable to plaintiff, as we must in determining whether a verdict for plaintiff would be allowed to stand, we have this state of facts: Plaintiff's house with an old shingle roof stood about 50 or 60 feet from the passing engine. The weather was dry, making the roof easily inflammable. The wind was rather strong and blowing so as to carry sparks from the passing engine toward the house. The blower of...