Jones v. Chicago M. & St. P. Ry. Co.

• Decision Date: 20 May 1918
• Docket Number: No. 11967.,11967.
• Citation: 204 S.W. 192
• Parties: JONES v. CHICAGO, M. & ST. P. RY. CO.
• Court: Missouri Court of Appeals

204 S.W. 192

JONES v. CHICAGO, M. & ST. P. RY. CO.

No. 11967.

Kansas City Court of Appeals. Missouri.

May 20, 1918.

Appeal from Circuit Court, Sullivan County; Fred Lamb, Judge.

"Not to be officially published."

Action by Wade H. Jones against the Chicago, Milwaukee & St. Paul Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed on remittitur; otherwise reversed and remanded.

Fred S. Hudson, of Kansas City, John W. Bingham, of Milan, and T. B. Davis, of Lucerne, for appellant. John W. Clapp, of Milan, for respondent.

BLAND, J.

Plaintiff's action was instituted to recover damages occasioned by a fire charged to have been set by sparks from engines attached to defendant's trains. The fire destroyed fruit trees, meadow grass roots, fencing posts, hay in the stack, and other personal property. The judgment in the trial court was for plaintiff. The case was before us on another occasion, and is reported in 189 Mo. App. 6, 176 S. W. 465, where a statement of the cause of the fire will be found.

Defendant strenuously insists that there is not sufficient evidence to sustain the verdict, and cities Fritz v. Railroad, 243 Mo. 62, 76, 148 S. W. 74, in support of the claim. We agree that, notwithstanding the statute in a fire case relieves a plaintiff from proving negligence on the part of the railway company, yet "he must still charge and prove that the fire was actually communicated to his property by one of defendant's locomotives in use on its road." But it is agreed all round that this proof of actually setting fire need not necessarily consist of seeing sparks leave the engine, fall upon and ignite combustible material on the defendant's premises. Circumstantial evidence will suffice.

There were two fires, one on the 8th and the other on the 14th of September, 1913. Plaintiff is the owner of a large farm in Sullivan county, and defendant's road is constructed over a part of it, running through his cultivated fields. There was evidence showing that shortly after noon one of defendant's trains passed over the road, and before it was out of sight a neighbor on an adjoining farm, standing on her porch, saw a train go by, and before it was out of sight saw smoke in plaintiff's meadow, then a small blaze. It was very dry, and the fire spread rapidly. Another person saw "the smoke down there by the railroad," and just at that time met the plaintiff coming home from a nearby village and said to him, "I believe there is a fire there." The plaintiff hurried to the place. The train could be seen for some distance from his place and was still in sight. The fire spread rapidly, and burned his orchard, meadow, fencing, hay, and other property.

At the time of the second fire plaintiff's son, about 19...