Johnson v. J. I. Case Threshing Machine Co.

• Decision Date: 08 February 1916
• Parties: W. D. JOHNSON, Respondent, v. J. I. CASE THRESHING MACHINE COMPANY, Appellant
• Court: Missouri Court of Appeals

182 S.W. 1089

193 Mo.App. 198

W. D. JOHNSON, Respondent, v. J. I. CASE THRESHING MACHINE COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

February 8, 1916

Appeal from Audrain Circuit Court.--Hon. James D. Barnett, Judge.

AFFIRMED.

Judgment affirmed.

E. S Gantt for appellant.

(1) The engineer, Gene Williams, in moving the engine in question was an independent contractor, and the court erred in refusing to instruct a verdict for the defendant at the close of the evidence for the plaintiff and at the close of all the evidence. Long v. Moon, 107 Mo. 334; Railroad v Yonley, 13 S.W. 333; Shearman & Redfield on Negligence (5 Ed.), par. 164; Kellogg v. Payne, 21 Iowa 575; 1 Thompson on Negligence, par. 622, 639; 26 Cyc. 1546; Burns v. McDonald, 57 Mo.App. 599; Shute v. Town of Princeton, 59 N.W. 1050; Fink v. Mo. Furnace Co., 82 Mo. 276; Drennen v. Smith, 115 Ala. 396; Crenshaw v. Ullman, 113 Mo. 633; Emmerson v. Fay, 94 Va. 60; Gayle v. Car Co., 177 Mo. 427, 446, 447; O'Hara v. Gas Co., 131 Mo.App. 428; Hexamer v. Webb, 101 N.Y. 377; Leavitt v. Railroad Co., 89 Me. 509; McCarthy v. Portman Parish, 71 Me. 318; DeForrest v. Wright, 2 Mich. 368. (2) The work of moving the engine from Molino to Mexico was not intrinsically or inherently dangerous. Bibb v. Railroad, 87 Va. 711; Kellogg v. Payne, 21 Ia. 575; Railroad Co. v. Moores, 80 Md. 348; St. Louis, etc. v. Yonley, 53 Ark. 503; Maltbie v. Bolting, 26 N.Y.S. 903; Negus v. Becker, 143 N.Y. 303; Ferguson v. Hubble, 143 N.Y. 507; Pierrepont v. Lovelace, 72 N.Y. 211; Neumann v. Real Estate Co., 73 Mo.App. 326. (3) Defendant had a lawful right to have the engine moved to Mexico for shipment. The moving of the engine in its condition was not the proximate cause of the injury. The proximate cause of the injury was the negligence, if any, of the independent contractor in using wood to fire the engine and in moving the engine when the wind was high and from the southwest, and the country covered with dry and combustible vegetation. The contract of the defendant with engineer Williams to move the engine required him to move it in no certain time. It left that matter to Williams' own judgment. Leavitt v. Railroad, supra; McCarthy v. Portman Parish, supra; Burbank v. Mill Co., 75 Me. 375.

David H. Robertson for respondent.

(1) The presumption is, that defendant owning the engine and Williams being in charge thereof, he was the agent of defendant and not an independent contractor; so that it was a question for the jury whether or not Williams was an agent. Kampmann v. Rothwell, 107 S.W. 122; Fleishman v. Ice and Fuel Co., 148 Mo.App. 135; Taylor B. & H. Co. v. Warner, 32 S.W. 870; Perry v. Ford, 17 Mo.App. 220; Shearman & Redfield on Neg. (6 Ed.), sec. 158. (2) If the jury found Williams to be an agent then under the evidence it was a question for the jury as to whether he was guilty of negligence in operating the engine when the wind was high, the vegetation dry and combustible and when the evidence showed the engine did emit sparks so as to cause a fire. 2 Thompson, Neg., sec. 2263; 3 Elliott, Railroads, sec. 1228; Railroad Co. v. Fritts, 68 L. R. A. 864; McFarland v. Sayer, 156 Mich. 426; Cook v. Doud Sons & Co., 147 Wis. 271; Friedrich v. Klise, 145 N.W. 353; Bedford v. Railroad Co., 46 Mo. 456; Coates v. Railroad Co., 61 Mo. 38; Coale v. Railroad Co., 60 Mo. 227; Kenney v. Railroad Co., 70 Mo. 243, 252; Wise v. Railroad Co., 85 Mo. 178; Crews v. Railroad Co., 19 Mo.App. 302; Miller v. Railroad Co., 10 Mo. 389, 2 S.W. 439; Logan v. Railroad Co., 43 Mo.App. 71; Polhaus v. Railroad Co., 45 Mo.App. 153; Otis Co. v. Railroad Co., 112 Mo. 622, 20 S.W. 676; Reed v. Railroad Co., 50 Mo.App. 504. (3) Although the jury might find Williams was an independent contractor, yet if they also found that the engine was so defectively constructed that it was inherently dangerous and liable to set out a fire then the defendant could not be absolved from liability by letting the work to an independent contractor and the plaintiff was entitled to recover. Thomas v. Lumber Co., 153 N.C. 351, 32 L. R. A. (N. S.) 584.

ALLEN, J. Reynolds, P. J., and Nortoni, J., concur.

OPINION

ALLEN, J.

--This is an action to recover the value of certain hay belonging to plaintiff alleged to have been destroyed by fire originating from a spark or sparks negligently allowed to escape from a traction engine of defendant which was being propelled along a highway adjacent to plaintiff's farm in Audrain county, Missouri. There was a verdict and judgment in plaintiff's favor for $ 290, and the defendant prosecutes the appeal.

It appears that a certain traction engine and "separator" had been sold by the defendant to one Mitchell, but the latter defaulted in payments to be made by him to defendant therefor, and defendant, through an agent, took possession of the property which was then upon a farm about three and one-half miles from the town of Molino, Missouri, and caused the same to be brought to the latter place and sold under a chattel mortgage held by defendant thereon. At this sale defendant became the purchaser thereof, and thereupon caused the engine and separator to be moved to Mexico, Missouri. The engine, propelled by its own power and drawing the separator, was moved along a public road adjoining plaintiff's farm, upon a day, according to the evidence, when the weather was quite dry and when a very strong wind was blowing in the direction of plaintiff's meadow, which was covered with dry grass. A fire started in this meadow near the road shortly after the engine had passed, and the evidence tends to show that it originated from a spark or sparks thrown therefrom. The engineer in charge of the engine testified that fire was discovered in plaintiff's meadow by a man accompanying him, and that they stopped and, as they thought, extinguished the same. It appears, however, that the fire was not completely extinguished, and that it later burned across the meadow and reached and destroyed plaintiff's ricks of hay on the farther side thereof.

It is admitted, for the purposes of this appeal, that the fire was sent out by a spark or sparks from the engine, and it is also conceded that the verdict is not excessive. The negligence charged in the petition is as follows:

"First, said engine was negligently constructed and defective as aforesaid, in that it did not have a spark arrester sufficient to prevent the escape of sparks; second, that it was negligence in the defendant to cause said engine to be moved through the country under the conditions aforesaid; third, it was negligence in the defendant to furnish the persons in charge of said engine with an implement from the construction of which necessarily fire was used in moving said engine and thresher along the public road; and, fourth, said engine was negligently handled, managed and controlled by those in charge thereof and in the employment of the said defendant in moving said engine and thresher."

The answer is a general denial, coupled with a plea to the effect that defendant contracted with a competent engineer, one Williams, to take this property to Mexico and there load it upon cars for shipment; that in moving said "threshing outfit" Williams "was acting as an independent contractor without instructions or directions as to details of said work;" and that if plaintiff suffered any damages in the premises "it was from the acts of negligence of said Eugene Williams in the performance of his contract for the moving of said machinery and not otherwise."

There are no assignments of error, as such, in appellant's brief. One point made by appellant is that the evidence conclusively showed that Williams, the engineer in charge of the engine, was an independent contractor, and that the court erred in refusing to direct a verdict for defendant on this ground. It is true that the testimony of Williams, called as a witness for plaintiff, tended to show an agreement between him and defendant's representative whereby he was to move the threshing outfit to Mexico and load it upon cars there, furnishing the necessary help, a team to draw the water tank, the fuel, oil, etc.; but we are not prepared to say that the evidence taken as a whole was conclusive as to the relation existing between Williams and defendant. In any event it is unnecessary to dwell upon the matter, in the view which we take of the case.

The evidence showed that the spark arrester upon this engine had a very large hole in it, through which sparks and burning embers freely passed and were emitted and scattered broadcast. It had been in this condition for many months and was furnished to Williams in this condition to be driven across the country. The evidence shows that it was customary for sparks or burning embers to be thrown out by the engine both when operated to run a separator for threshing purposes and when driven along by its own power. More of these were emitted, it is said, when wood was used as fuel than when coal was burned, but in any event when the engine was "laboring" it appears that sparks and "fire" were cast out through the smoke stack by the force of the "exhaust" in great quantity. The distance to which such burning particles would fly depended of course, to a considerable extent, upon wind and weather conditions. The former owner testified that the engine had thus set fire to the separator when the latter was one hundred and sixty feet from it. At the precise time here in question coal, it is said, was being used as fuel, though pieces of wood had been picked up along the road from time to time and used to supplement the coal. And it seems that the fire originated near a hill, and, evidently, while the engine was laboring to ascend the same. The instrumentality therefore...