J. Q. Lloyd Chemical Co. v. G. Mathes & Sons Rag Co.

• Decision Date: 30 November 1909
• Parties: J. Q. LLOYD CHEMICAL CO. v. G. MATHES & SONS RAG CO.
• Court: Missouri Court of Appeals

123 S.W. 528

J. Q. LLOYD CHEMICAL CO. v. G. MATHES & SONS RAG CO.

St. Louis Court of Appeals. Missouri.

November 30, 1909.

Rehearing Denied December 14, 1909.

1. NEGLIGENCE (§ 21) — DANGEROUS INSTRUMENTALITIES — FIRE — CARE REQUIRED.

One kindling a fire must use care to prevent it from damaging his neighbor in proportion to the risk reasonably to be apprehended.

2. NEGLIGENCE (§ 125) — ACTIONS — EVIDENCE — ADMISSIBILITY.

Evidence of fires other than the one in controversy is admissible within proper limits, where defendant's liability turns on the question of its neglect, as well as where the defendant

is absolutely liable for fires communicated from fires which it started.

3. NEGLIGENCE (§ 125) — ACTIONS — EVIDENCE — ADMISSIBILITY.

Under the rule that evidence of fires other than the one in controversy is admissible only when conditions are substantially similar, where there was evidence that previous to the fire in question there was a pile of débris, from two to four feet high, glowing embers and flames in which could be seen across the street, which débris remained after the burning of cars by defendant, and from which plaintiff claimed fire was communicated to the cupola of a building in which he was tenant, it was proper to admit evidence that embers had been carried by the wind across the street and of a previous fire communicated to an awning near the same place from similar piles of débris, but not to admit evidence of conflagrations on the burning of cars by defendant like the burning of three or four large houses on other days through six weeks, nor that embers and flaming sticks a foot long had been borne through the air and dropped on buildings, nor of other conditions when the fires were in full blast.

4. NEGLIGENCE (§ 139) — ACTIONS — INSTRUCTIONS.

In an action for loss from fire communicated from one started by defendant, it is better for instructions to predicate recovery on too close proximity of defendant's fire to plaintiff's property, and want of proper attention to it, than merely on want of proper precautions, defined by the court, as such precautions as a man of ordinary prudence and diligence would take under similar circumstances.

Appeal from St. Louis Circuit Court; Wm. M. Kinsey, Judge.

Action by the J. Q. Lloyd Chemical Company against the G. Mathes & Sons Rag Company and another. From a judgment for plaintiff against defendant G. Mathes & Sons Rag Company, it appeals. Reversed and remanded.

E. T. Miller and T. E. Francis, for appellant. Ferris & Ferris and Thos. H. White, for respondent.

GOODE, J.

Plaintiff and defendant are both incorporated companies, and the former sues for damages sustained by the burning of personal property owned by it and contained in a one-story brick and frame building on the east side of De Baliviere avenue in the city of St. Louis, which plaintiff occupied as tenant, and where it manufactured chemical compounds. The property destroyed consisted of furniture, machinery, apparatus, fixtures, partitions, stock, and other articles. On the west side of De Baliviere, and opposite the building occupied by plaintiff, stand extensive car sheds of the United Railways Company, a corporation operating street railways in the city of St. Louis. The railways company owns, in connection with its sheds, a tract of land 400 feet wide on De Baliviere, and extending back westwardly 1,200 feet. The building which plaintiff occupied on the opposite side of the street was 60 feet long and 25 feet wide, fronting on De Baliviere. Near the center of the roof was a cupola or ventilator six feet wide, twelve feet long, and four feet high, with slatted sides made of pine lumber one inch thick, seven inches wide, and placed five or six inches apart. The United Railways Company sold 233 old street cars to defendant G. Mathes & Sons Rag Company, which purchased to get the scrap iron in them. To do this the Mathes Company burned the cars on the lot of the railways company to the westward and opposite the building occupied by plaintiff. De Baliviere avenue, running north and south, was about 75 feet wide, and hence there was that distance at least between plaintiff's property and the fire. Just how far west of the east line of the railways company's lot the cars were burned is in dispute on the testimony; the witnesses varying in their statements from 20 feet from the sidewalk on the west side of De Baliviere to 100 feet or more. Hence there is a discrepancy in the testimony as to how far the cars were burned from defendant's building of from 95 feet to about 180, or maybe more; for the witnesses differed about the exact width of De Baliviere avenue. The cars were burned in the months of April and May, 1906, over a period of six weeks, and from two to eight cars were burned at a time and the scrap iron taken by defendant from the ashes. It required about two hours to burn a pile. According to the testimony for plaintiff, its building caught fire in the cupola on the evening of May 29th, at 10 o'clock or past, extended to the rest of the building, and destroyed a great deal of plaintiff's property. The cupola was some 30 feet back from the front of the building, and therefore was that much further from the fire. For defendant the evidence inclines to prove the fire started inside the building. Four or five gas jets were left in flame, but turned low, at the close of business on the evening the house burned. These jets of flame were each about five inches wide, and burned under steel tanks in which chemicals were mingled. The testimony for plaintiff is that only incombustible materials were in proximity to the jets. Some stoves were in the house, but the general manager of plaintiff testified there had been no fire in them the day of the loss. The gravamen of the case was that defendant negligently set out and maintained the fire on the premises of the United Railways Company on May 29th, "and did so negligently manage said fire that sparks and burning embers were allowed to escape from it and be scattered abroad, and that by reason of the negligence of defendant as aforesaid certain sparks, cinders, and burning embers from the said fire were transported and carried through the air and across the intervening space between the said fire and the said property of plaintiff, and did set fire to, burn, injure, and destroy the said property of plaintiff, and did so burn and injure the building which plaintiff occupied that plaintiff was not able to use the same for a period of ____ weeks." Judgment was prayed for $3,600, and one was obtained upon the verdict of the jury for $3,000.

The evidence was surprisingly conflicting as to whether any cars were burned on May 29th, the date when the building occupied by plaintiff caught fire. A witness said they were burning all day, and when he left his place of business, which was adjacent to plaintiff's, at 6 o'clock in the evening, a pile of hot embers, iron, and ashes three or four feet high was on the lot — relics of the cars burned that day — saw the same relics at 11 o'clock p.m. Much testimony of a positive character was given for defendant that no cars were burned on that day; the last prior burning being on May 25th, and this was corroborated by the records of the railways company which recorded the dates of the burning of cars. It is conceded there was enough evidence in plaintiff's favor on that issue to send it to the jury. The tendency of the evidence for plaintiff was to prove the wind on the evening of the fire set toward the Lloyd building, but there was other evidence, including the testimony of the superintendent of the National Weather Office in St. Louis, that the wind was from the east or southeast, and hence blowing from the Lloyd building toward the railways company's lot. Plaintiff was allowed to introduce evidence that on prior days sparks and embers from the burning cars had been carried across De Baliviere avenue by the wind, and had settled on the Lloyd building. To the admission of this evidence an exception was saved, and the ruling is now assigned for error. In the same connection testimony was received that sparks, firebrands, and sticks a foot long settled on another building; that occupants of both buildings were compelled to shut the doors of the buildings opposite the car fires to keep out sparks, smoke, and ashes; that the heat would burn their faces; that awnings were burned by sparks on several occasions, and two or three weeks before the fire in question one was completely destroyed; that defendant was notified of this loss, and paid for the awning, but continued to burn cars on the railways company's lot; that sometimes the conflagration on the lot was the same "as if three or four pretty big houses were burned at one time." The reasons of the objection to the reception of evidence regarding the burnings prior to May 29th can be shown best by copying them from the record: "Mr. Miller: The defendant United Railways Company wishes to make one objection here to this character of testimony to save making it every time the question is asked. It objects to the testimony of any fires maintained on the premises of the United Railways Company prior to the day of the fire of which the plaintiff complains — the fire of May 29, 1906. The testimony is wholly immaterial, and it is irrelevant to any of the issues. It brings up collateral issues for the jury, and the only tendency of the testimony as to former fires is to confuse the jury; and it brings up testimony of which the defendants had not been notified to prepare a defense to. Mr. Levison: The defendant Mathes Rag Company objects to the introduction of any evidence of any fire prior to that alleged in the petition or after the date of May 29, 1906. Mr. Ferris: Our contention is that these fires were all of the same character, located on the same place, the same things were being burned by the same people, and we are going to follow this testimony up...