Hightower v. Missouri, Kansas & Texas Ry. Co.

• Decision Date: 30 April 1878
• Citation: 67 Mo. 726
• Parties: HIGHTOWER v. MISSOURI, KANSAS & TEXAS RAILWAY COMPANY, Plaintiff in Error.
• Court: Missouri Supreme Court

67 Mo. 726

HIGHTOWER

v.MISSOURI, KANSAS & TEXAS RAILWAY COMPANY, Plaintiff in Error.

Supreme Court of Missouri.

April Term, 1878.

Error to Vernon Circuit Court.--HON. JOHN D. PARKINSON, Judge.Francis Whorton and John Montgomery, Jr., for plaintiff in error.

C. G. Burton for defendant in error.

At the trial the court, of its own motion, gave the following instruction: If the jury find from the evidence, after the fire was set by defendant, the same was extinguished, or nearly so, and that it afterwards increased and spread over a great extent of territory, and finally reached the plaintiff's premises in consequence of an extraordinary high wind springing up in the morning, and would not have reached the plaintiff's premises but for such high wind so springing up next day, they must find for defendant.

NAPTON, J.

The injury to the plaintiff's farm in this case was occasioned by the same fire heretofore referred to in the case of Poeppers v. Missouri, Kansas & Texas Ry. Co. The case was tried, however, in a different county and before a different judge. The instructions in this case, it will be seen from a copy of them in the statement, are as favorable to the defendant as could have been asked. The question of an intervention of a new cause of damage between the original fire and its ultimate destruction of plaintiff's property is clearly put to the jury, and they are told that, if the wind on the morning succeeding the fire was an extraordinary one, the defendant was entitled to a verdict. The judgment must be affirmed.

AFFIRMED.