Fritz v. St. Louis, I. M. & S. Ry. Co.

• Decision Date: 31 May 1912
• Citation: 148 S.W. 74
• Parties: FRITZ et al. v. ST. LOUIS, I. M. & S. RY. CO.
• Court: Missouri Supreme Court

148 S.W. 74

FRITZ et al. v. ST. LOUIS, I. M. & S. RY. CO.

Supreme Court of Missouri, Division No. 1.

May 31, 1912.

1. APPEAL AND ERROR (§ 1170)—HARMLESS ERROR.

Under Rev. St. 1909, §§ 1850, 2082, which requires errors not affecting substantial rights to be disregarded, errors against plaintiff in instructions and in admitting evidence are harmless where he failed to show right to recover.

2. RAILROADS (§ 453) — FIRES — STATUTORY LIABILITY.

Rev. St. 1909, § 3151, which makes railroad companies liable for setting fire to adjoining property, should be liberally construed.

3. TRIAL (§ 156)—DEMURRER TO EVIDENCE.

On demurrer to the evidence, defendant's testimony if contradicted must be taken as false, and plaintiff's, whether contradicted or not, must be taken as true.

4. TRIAL (§ 140)—PROVINCE OF JURY.

The credibility of witnesses and the weight of their testimony are for the jury to determine.

5. RAILROADS (§ 482)—FIRES—ORIGIN—EVIDENCE —SUFFICIENCY.

Evidence held insufficient to show that a locomotive set fire to plaintiffs' mill which was located near defendant's right of way.

6. EVIDENCE (§ 587) — "CIRCUMSTANTIAL EVIDENCE."

Proof by "circumstantial evidence" consists in proof of a fact by proof of surrounding conditions from which existence of the principal fact may be deduced.

Error from Circuit Court, Lawrence County; F. C. Johnson, Judge.

Action by August Fritz and another, partners as the Hoberg Milling Company, against the St. Louis, Iron Mountain & Southern Railway Company. Judgment for defendant, and plaintiffs bring error. Affirmed.

Fyke & Snider and I. V. McPherson, for plaintiffs in error. M. L. Clardy, E. J. White, and Robert T. Railey, for defendant in error.

LAMM, J.

Plaintiffs (a firm) owned and ran a gristmill hard by defendant's railroad at a way station, Hoberg, in Lawrence county. In the shank of the evening of January 10, 1908, mill and contents (barring a salvage of the boiler and engine, put at $1,000 to $1,500) were burned. Alleging the fire caught from defendant's locomotive, plaintiffs sued in the Lawrence circuit court, putting their damages at $17,163.10. On issues joined, the jury found for defendant. From a judgment following, plaintiffs appeal, assigning error in that the court permitted counsel in his opening statement to make prejudicial remarks, admitted incompetent testimony, permitted repeating prejudicial questions, erred in refusing to strike out testimony, and in giving an instruction. For defendant it is argued, contra, that there is no such error, further, in effect, that plaintiffs made no case; hence (counsel say) an asked demurrer to the evidence should have been given, and that such alleged error, if any exists, does not affect the merits or concern an appellate court. Such, in outline, are the issues below and here.

1. The administration of justice cannot be too often or too much quickened by recourse to salutary statutes intended to produce just practical results; this, as over against the vulgar and pernicious fallacy that a lawsuit on appeal is a mere game of wits to be played according to highly artificial rules, over which "game" we sit as a mere umpire according points to one player or another by the dry and lifeless rules of the game for the sake of the game itself. Elevated and uniform justice could not be administered without rules. If there were no rules, we would be governed by men, not laws. Order is not only Heaven's first law, but order is of the essence of the science of jurisprudence. But rules are not the ultimate end, the main thing; that main thing is justice itself, the very right of the matter. The rules are only in aid of that main thing—the working tools whereby it is attained.

Section 1850, R. S. 1909, reads: "The court shall, in every stage of the action, disregard any error or defect in the pleadings or proceedings which shall not affect the substantial rights of the adverse party; and no judgments shall be reversed or affected by reason of such error or defect." Section 2082, R. S. 1909, reads: "The Supreme Court, or Courts of Appeal shall not reverse the judgment of any court, unless it shall believe that error was committed by such court against the appellant or plaintiff in error, and materially affecting the merits of the action."

In establishing a working theory to administer those statutes, it is stiffly held that, if a plaintiff is allowed all his competent proof and make no case on the facts on which liability can be predicated and is unsuccessful below, then error in his adversary's instructions, or in the admission of evidence on the part of such adversary, cannot "materially affect the merits of the action" or "the substantial rights of the adverse party." In such case (as to an appealing plaintiff), at bottom there are no merits and no substantial rights in the eye of the law. Traner v. Sphalerite Mining Co., 148 S. W. 70, just handed down and not yet officially reported, and cases cited.

At the threshold, then, lies the question: Did plaintiffs make a case for the jury? If that question be answered, "No," then mere error in instructions and in the admission of evidence on behalf of defendant is afield and fills no office at all on appeal under the quoted statutes, for the result, despite the error, was right. If right, it abides. We will not undo what has been done in order that some intermediate move in the "game" may be corrected only to get the same result again. If "Yes," then error in the way the case was put to the jury at once takes on new color and becomes of substance.

2. Of the facts. Attending to them, defendant's right of way at Hoberg is 100 feet in width and its track lies in the center. There is a bit of obscurity on the point, but from what follows we take it the track runs southeast and northwest. Plaintiffs own a tract abutting on said right of way. Its description with other substantial testimony indicates that defendant's road ran to the northwest. Plaintiffs' mill stood broadside parallel to the right of way four or five feet therefrom, and say 54 feet from the track, and must have had the same relation to the cardinal points of the compass. This has some significance taken with the way the wind sat the night of the fire. In the afternoon and evening of January 10, 1908, there was a high wind blowing from the northwest. Obviously the same direction of track and wind is a factor in determining the course locomotive sparks would take. It is more convenient, however, to refer to the mill and track as running east and west, and witnesses now and then drop into that form of expression. So it was very cold the afternoon and evening of the fire. All agree it was foul weather—damp, misty, and threatening. Some say rain fell in that region in the afternoon. Some that it snowed in the evening, at least during the fire. The mill, a wooden structure of 60-barrel capacity, was newly built, partly of old material. There was a main building of three stories with additions of an engine room and a wareroom, each one story. The wareroom ran along the entire east end of the main mill. The engine room ran along its west end, but lacked 12 feet of being as near the track. The main mill was covered by a composition roof; the engine and warerooms with galvanized iron. The mill was completed except wheat bins and the wareroom, and carpenters were working on them. Windows were in and doors hung except one—a large door on the north side of the main mill, fronting the track and intended to shove to and fro on rollers. That door was fastened shut on occasion with eightpenny nails. At such times it was not nailed "solid" but was secure. On warm days they took this door away. For a week before January 10th there had been no fire in the engine room, but the mill, theretofore grinding, was open for business, occupied by the proprietors plying their calling as millers, and by carpenters on that day. Heat was furnished at the time by a coal oil stove in a room called the "office" when the engine was not running. On January 10th that coal oil stove was running. Witnesses vary on the time the mill men quit work and left, closing it for the evening, but it was nigh 5 o'clock, its windows were fastened and doors locked except the north door, and that was nailed up as usual. As we grasp it, there was a rule made by Groh against smoking in the mill, but as he made the rule he accommodatingly waived it in his own favor, smoking cigars and pipes in the office. This office was in the southeast corner of the main mill, next the wareroom. Groh testified that he turned down the oil stove before leaving the mill; that his habit was to see it out before he went away. Stored in the mill were some hundreds of bushels of wheat, 10,000 pounds of flour, 3,000 pounds of feed, 190 bushels of corn, 2 barrels of oil, and a barrel of oil waste, the latter in the northwest corner of the mill proper, and some clothes close by.

All agree that a young man named Owens discovered the fire and first gave the alarm. He puts himself at church about two miles from Hoberg and, according to his watch, left church at about a quarter to nine. He drove in a buggy the two miles to Hoberg and discovered the fire at about quarter after nine, when some distance away. He then drove to the Creymeyer house where Groh was sleeping (a house about one-fourth of a mile from the mill), awakened him and others, and then drove north of the mill. At first he saw the blaze coming around the southwest corner of the engine room. Afterwards, when on the north of the mill, he saw the fire in the northwest corner of the main building, both in the inside and on the outside, and the weather-boarding there was burnt through. When he saw the fire at the southwest corner of the engine room, it was a blaze about the size of a small brush pile. There was other testimony that Owens gave the alarm at Creymeyer's house at about a quarter to nine instead of a quarter after. At any...