Jasper v. Wabash Ry. Co.

• Decision Date: 11 November 1929
• Docket Number: No. 16693.,16693.
• Citation: 24 S.W.2d 243
• Parties: JASPER v. WABASH RY. CO.
• Court: Missouri Court of Appeals

24 S.W.2d 243

JASPER v. WABASH RY. CO.

No. 16693.

Kansas City Court of Appeals. Missouri.

November 11, 1929.

Appeal from Circuit Court, Nodaway County; D. D. Reeves, Judge.

Action by Lester Jasper against the Wabash Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Shinabarger, Blagg & Livengood, of Maryville, Homer Hall, of St. Louis, A. F. Harvey, of Maryville, and Du Bois & Miller, of Grant City, for appellant.

Cook & Cummins, of Maryville, for respondent.

BOYER, C.

Plaintiff below sued for damages to seven mules and one horse caused by a fire alleged to have been set out by one of defendant's locomotives. The jury awarded damages in the sum of $930, judgment followed, and defendant duly appealed and assigns as error: (1) The refusal of defendant's instruction in the nature of a demurrer; (2) the giving of plaintiff's instructions 1, 2, and 4; (3) the refusal to give defendant's instruction C; and (4) the admission of incompetent testimony for plaintiff.

Appellant insists that the demurrer should have been sustained because there was no evidence that the fire was communicated to plaintiff's property by defendant's locomotive, and that the plaintiff alleged specific negligence which he failed to prove.

The evidence favorable to plaintiff shows that he owned 83 acres of land about one-quarter of a mile north of defendant's railroad and two miles east of the station of Bedison, the first station about eight miles east of Maryville. Riley owned the land between plaintiff's land and the railroad. The tracks run practically east and west at that place. Where the railway passes by the Riley land and in the neighborhood of plaintiff's land, there is a heavy grade from either direction. The top of the grade, with respect to the land of plaintiff and Riley, is near the center of the land; trains going over this grade have been noticed in times past to be pulling hard and heavy, very difficult, sometimes stalled. The most difficulty was in going west. Plaintiff's land was used for farming purposes; it had been in corn and meadow and some pasture; some 27 acres of pasture and meadow land; plaintiff had haystacks about the middle of the east end of the 80, in the meadow land, and a trifle over a quarter mile from the railroad; there were seven head of mules and one horse in the meadow, the stalk field, and pasture. The fire which burned and injured the mules and horse occurred on the 3d of March, 1928; plaintiff was not there and lived about 12 miles away; he learned of the fire late at night; he went down to the place of the fire and arrived there about 1 o'clock the next day. The fire had burned over the meadow and burned the haystacks and had covered an area of 8 or 10 acres of his land, and had burned over about 18 acres of the Riley land; the fire had extended all the way from the railroad ties into his land. The seven mules and horse had been badly burned; he testified that their total value immediately before the fire was $1,350, and when he saw them they were worthless. When he arrived at his place after the fire, there were neighbors and other men there trying to halter the mules and horse to take them to a neighbor's place for care. Mr. Gee, the roadmaster of the Wabash, and Mr. Archer, the section foreman, were there in charge of the mules and horse, and ordered them to be removed to Mr. Allen's place for care. Plaintiff did not attempt to take charge of the property, which he claimed as his, or do anything about relieving the condition of the mules and horse; he did not think it was his place; they were in charge of them and he did not think it was his place at all when it was their fire. The animals were removed to Mr. Allen's place for care, where they remained about a month and a half. Mr. Gee called plaintiff down to see him at Bedison; he wanted plaintiff to take the animals and take charge of them; plaintiff told him that he did not have to get the privilege of them, for they had taken charge of them. Plaintiff testified that he was the owner of the mules and horse, "owned those absolutely."

An insurance policy covering said live stock had been issued to N. A. Jasper, plaintiff's father, in the sum of $600, and after the fire the insurance company paid this amount, upon proof of loss and ascertainment of the value of the property, by check and draft to N. A. Jasper. Plaintiff took charge of the draft, signed it, and deposited it to his account. Mr. Casteel, the agent who wrote the insurance policy, testified that N. A. Jasper did not go out very often; that he and his son, Lester Jasper, transacted business together; that "the young man came down and wanted to take out some insurance on his father's property; I presume I suggested that if there was any personal property of his he wanted to put in the same policy, cattle or horses", I said, "to save you the policy fee we will write them in the one policy." He said that was all right and we arranged it that way. The policy was written in the name of N. A. Jasper and proof was made out in the same name; the agent knew at the time that the stock belonged to the son; the son represented the live stock to be his and the agent put the property which he was told belonged to Lester Jasper in the policy of N. A. Jasper, his father; the father was an invalid and trusted his boy to attend to business, and he attended to it right.

Plaintiff further testified that he and his father collected the insurance money; that there was one team which his father had given him to use, and do with as he liked, and this team was supposed to be returned to his father when plaintiff was through with it; that his father turned over these mules to him in the spring of 1925, and in 1928, when the policy was taken out, plaintiff claimed to own them; that his father gave him permission to take the policy; his father had an interest in the one span described, when plaintiff was through with it; that when the mules were turned over to him his father said: "You take these mules and use them as long as you want to; they are your mules to use and do as you please with." Then this question was put to plaintiff: "Q. In other words, you had those mules borrowed, as I get it, to keep and use as long as you wanted, and at the same time, you had to turn them back to him, is that the terms of the contract with your father? A. Yes."

Robert Allen testified that he lived a mile and a quarter west of the Jasper land; that he was familiar with the way the track runs in the neighborhood of the Riley and Jasper land; the top of the grade is about 20 rods west of the east line; it may be a little farther west. Trains approaching this land from every direction would go upgrade. Witness had observed trains coming towards the Riley land from both directions. Witness was asked this question: "What have you observed as to the operations of trains going either way up that hill as to their showing whether or not they were pulling heavy or not?" And answered: "I used to farm right along the railroad there by Allen Brady's and the cinders would hit me pretty rapidly over there, pretty hot." And in reference to vegetation on the right of way, he said it looked like it had been weeds and slough grass mowed and had not been burned off; he went over to the fire about half past 3; that the fire was burning across the Riley tract and up into Lester Jasper's meadow, in the stalk field and pasture; the haystacks were on fire. The fire was burning both ways, east and west; the smoke was traveling north. The fire had burned up to the edge of the shoulder, and the end of the ties within four or five feet; it had burned over the right of way; it appeared to have been freshly burned; the mules and horse were badly burned; they were brought over to his place; Mr. Gee asked witness to take care of them; they remained there for seven weeks and the company paid $315 for their care; they were treated by a veterinary. About five or six feet from the end of the ties, it looked like a tie had caught fire and burned up; that was just about center way between the back fires.

The railway agent at Maryville gave the schedule of trains passing east and west on the day of the fire from 4:05 a. m. to 11:20 p. m. The station at Bedison is seven miles east of Maryville. Train No. 71, west bound, arrived at Maryville at 9:20 a. m.; it was a local freight of four cars of coarse freight and two empty cars; train No. 61, west bound, was a through freight and went by at 12:05 p. m.; this train was pulled by two engines; it had eight cars of time freight, six cars of coarse freight, thirteen empties, and a caboose. Both before and after these two trains numerous other trains passed in both directions. The ordinary running time of the train that arrived at Maryville at 12:05 p. m., from two miles east of Bedison up to Maryville station, would be 25 to 30 minutes with no delays and no stop at Bedison, "which they don't usually do." The train was probably at Bedison at 11:40. Nearly all freight trains run with double-header engines except local freights; there were three double-headers on that day.

B. J. Brady lived about half a mile north and east of the Jasper land, which is in sight from his place. He testified that he was at home March 3, 1928, burning hedge, and noticed the fire in the Jasper pasture at about 11:30; he saw the fire before that on the Riley place at 10 o'clock, maybe a little after; the fire was running north; the smoke was traveling slightly in a northeast direction, just a little bit to the east; it was about 35 rods across the Riley place; it took the fire from about 10 to 11:30 to burn up across that distance.

Clarence Mapes testified that he lived on the Jasper farm; that he knew the Jasper mules prior to March 3; they were on the south side of the place in the stalk field and hay meadow; they were in good condition, four big mules; the younger ones were not developed. Witness had...