Kaw Feed & Coal Co. v. The Atchison, Topeka & Santa Fe Railway Co.

• Citation: 107 S.W. 1034,129 Mo.App. 498
• Parties: KAW FEED AND COAL COMPANY, Respondent, v. THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Appellant
• Decision Date: 17 February 1908
• Court: Court of Appeals of Kansas

107 S.W. 1034

129 Mo.App. 498

KAW FEED AND COAL COMPANY, Respondent, v. THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

February 17, 1908

Appeal from Jackson Circuit Court.--Hon. Henry L. McCune, Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

Thomas R. Morrow and Samuel W. Sawyer for appellant.

(1) The court should not have admitted in evidence the statement of the expert witness Hardy of his conclusion as to the cause of the explosion or fire in question. It was the province of the jury, not of the expert, to determine the cause of the explosion or fire. Guthridge v. Railway, 94 Mo. 468; Glasgow v. Railway, 191 Mo. 347; Taylor v Railroad, 185 Mo. 239; Roscoe v. Railway, 202 Mo. 576; Lutz v. Railway, 123 Mo.App. 499; Smith v. Kansas City, 101 S.W. 1118; Thomas v Railway, 100 S.W. 1121; Traction Co. v. Bliss, 62 N. J. L. 410; 41 A. 837; Chicago v O'Donnell, 124 Ill.App. 78. (2) Expert testimony was also improperly admitted: Because it was not based upon hypothetical questions, but upon the reading of the depositions on file in the case. State v. Klinger, 46 Mo. 224; State v. Privitt, 175 Mo. 207; Livery Co. v. St. Louis, 105 Mo.App. 560; Neudick v. Grand Lodge, 61 Mo.App. 99; Dexter v. Hall, 15 Wall. 9; People v. McElvain, 121 N.Y. 250; 24 N.E. 465; 18 Am. St. 820; The Clement, 2 Curtis, 363, 5 Fed. Cases No. 2879; Bennett v. State, 57 Wis. 69, 14 N.W. 912, 46 Am. 26; Guiterman v. Liverpool, etc., Co., 83 N.Y. 358; Doty v. Morris, 10 Hun (N. Y.) 201; Craig v. Noblesville, etc., Co., 98 Ind. 109; Kempsey v. McGinnis, 21 Mich. 123; Page v. State, 61 Ala. 16; Gutwillig v. Zuberbier, 41 Hun (N. Y.) 361; Armendiaz v. Stillman, 67 Tex. 468; Stoddard v. Winchester, 157 Mass. 567, 32 N.E. 948; Elliott v. Russell, 92 Ind. 526; McMechen v. McMechen, 17 W.Va. 683; Reynolds v. Robinson, 64 N.Y. 589; Reed v. State, 62 Miss. 405; Sills v. Brown, 9 Car. & P. 601; State v. Bowman, 78 N.C. 509; Hoener v. Kosh, 84 Ill. 408; Ayers v. Water Commissioners, 22 Hun (N. Y.) 297; Lawson, Expert and Opinion Evidence, sec. 164, p. 258; sec. 165, p. 260; Jones v. Railway, 47 Minn. 329, 45 N.W. 444. Because it was not based upon all the evidence and because it was based upon matters not in evidence. Turner v. Haar, 114 Mo. 335; Kempsey v. McGinnis, 21 Mich. 123; Russ v. Railway, 112 Mo. 45; Brown v. Commonwealth, 14 Bush (Ky.) 39; Guiterman v. Liverpool, etc., Co., 83 N.Y. 358. The only hypothetical question asked the witness was also improper. Benjamin v. Railway, 50 Mo.App. 602; Turner v. Haar, 114 Mo. 335; Hicks v. Railway, 124 Mo. 114; State v. Brown, 181 Mo. 192; Heinzel v. Railway, 182 Mo. 528; Root v. Railway, 195 Mo. 348; King v. Gilson, 104 S.W. 52; Hannerberg v. Railway, 62 Mo.App. 563; Smart v. Kansas City, 91 Mo.App. 586; North American, etc., Assn. v. Woodson, 64 F. 689. (3) Instruction No. 1, given at request of plaintiff, was erroneous. (4) Court erred in refusing to give to the jury defendant's instruction number 1.

Meservey & German for respondents.

(1) The facts alleged constitute a cause of action, and when proven make a prima-facie case, and puts the burden of proof on appellant to absolve itself from liability if it can. That is to say, the proof of these facts raises a presumption of negligence which makes a primafacie case. In support of this proposition we cite the following cases: Kearney v. Railroad, L. R., 5 Q. B. 411; affirmed, L. R., 6 Q. B. 759; Byrne v. Boadle, 2 Hurlst & C. 722; Clare v. Bank, 1 Sweeney 539; Volkmar v. Railway, 27 Jones & S. 125; Maher v. Railway, 53 Hun 506; Mossemann v. Railway, 32 N.Y. 61; Cahalin v. Cochran, 1 N.Y. 583; Mullen v. St. John, 57 N.Y. 567, 15 Am. 530; Vincett v. Cook, 4 Hun 318; Ficken v. Jones, 28 Cal. 618; Thomas v. Telegraph Co., 100 Mass. 156; McMahon v. Davidson, 12 Minn. 357; Rose v. Transportation Co., 20 Blatchf. 411; Posey v. Scoville, 10 F. 140; Young v. Bransford, 12 Lea 232; Railroad v. Phillips, 49 Ill. 234. (2) It has been held in this State that if there is no conflict in the evidence, the court may allow counsel to ask a hypothetical question upon the facts as the witness remembers them. State v. Privitt, 105 Mo. 207; State v. Klinger, 46 Mo. 224. A conclusion is not prejudicial if it is followed by a statement of the grounds upon which it is based. Brewing Co. v. DeVrance, 57 N.W. 959; Commercial Travelers v. Barnes, 90 P. 293. A conclusion is often permissible. Insurance v. Railway, 104 N.W. 361; Turner v. Baker, 77 S.W. 479; State v. Privitt, supra; Powers v. Kansas City, 56 Mo.App. 573; Smith v. Railway, 119 Mo. 246; Fullerton v. Fordyn, 144 Mo. 531; Meeker v. Railway, 178 Mo. 173.

OPINION

ELLISON, J.

--This action was instituted to recover damages on account of starting a fire which consumed an old building which plaintiffs had shortly prior thereto purchased of defendant. The judgment in the trial court was for the plaintiffs.

It appears that the building was frame and was large and old, having been used by defendant as a freight depot. The fire destroyed it and plaintiffs brought this action claiming as damages the loss and value of the separate constituent parts of the building, in the aggregate sum of $ 2,942.50. The petition alleges the purchase of the building for the sum of $ 400, and that plaintiffs were to have thirty days from the date of sale in which to remove the west two-thirds of it and ninety days in which to remove the remaining one-third. That the defendant was to have the privilege of remaining in occupancy of a part of the building until it was removed. That plaintiffs had removed a part of the building while defendant was still in the other part. That the defendant, for the purpose of heating its office in the building, used an oil stove, in the nature of a large lamp with wick. That on the 24th of February, 1903, the defendant carelessly and negligently used improper and explosive oils in said stove and carelessly and negligently filled, lighted and attempted to control said stove, carelessly and negligently permitted said stove to become and remain out of repair, dirty, defective, dangerous and unfit for use, so that by reason thereof it exploded and set fire to the remaining portion of the building and destroyed the same, "including 140,000 feet of lumber worth as the same then stood in said building, $ 2,800, and two hundred perch of building stone, worth as the same then stood, $ 100, and ninety-five squares of tin roof, worth as same then stood, $ 42.50, and three sets of dormant scales, worth as they then stood, $ 24, or an aggregate of $ 2,942.50, to the loss and damage of plaintiffs in that sum. That plaintiff has remitted and does remit and abandon all of said claim against defendant over and above $ 1,999.99. Wherefore they pray judgment," etc.

The instruction given for plaintiffs did not submit to the jury the full breadth of the negligence thus charged. The only hypothesis on that head was whether "said stove was permitted to become and remain out of repair, defective, dangerous and unfit for use." The evidence in plaintiffs' behalf did not tend to establish that part of the charge in the petition relating to negligence in using explosive oils, or negligence in filling and lighting the stove; or at least, as will be seen by the instruction just quoted, plaintiffs abandoned all charge of negligence save that the stove was permitted to become and remain out of repair, to become and remain dirty, to become and remain defective and to become and remain dangerous and unfit for use. The chief evidence of the cause of the explosion, which occurred just after the stove was lighted about seven o'clock in the morning, was that the tube which carried the water from a water reservoir, above the oil reservoir, down around the latter, and served to keep it from being unduly heated by the burner, became frozen on the night preceding, which broke or cracked the tube and caused the water to leak out and thus the stove to become heated for lack of the cooling effect of the water. That evidence did not tend to sustain any charge of negligence contained in the petition, nor was it any proper foundation upon which to base the instruction. It is not suggested that it tended to prove the oil was not of proper kind, and certainly a pipe freezing only the night preceding the early morning of the explosion has no tendency to prove a charge of negligence in allowing a stove to become and remain out of repair, dirty, dangerous and unfit for use. The negligence the evidence tended to prove was not of the continuous and protracted kind charged, but was rather in neglect to provide against the pipe freezing.

In seeming endeavor to avoid this, plaintiffs invoke the presumption of negligence arising from the rule of res ipsa loquitur. But that rule has no place in a case where specific negligence is alleged in the petition. [McGrath v. Transit Co., 197 Mo. 97, 94 S.W. 872; Feary v. Railway, 162 Mo. 75; Kennedy v. Railway, Mo.App. .

Defendant's further complaint of error relates to the mode of ascertaining the damage and is also well grounded. The cause of action was loss of the building as it stood and as it was situated under the terms of the contract set forth; that is a building on land of another and which was to be removed from such land. What was such a building worth as it thus stood? Not what was the value of the lumber of which it was composed, the value of the stone in the foundation on which it stood, nor the value of the tin which composed the roof with which it was covered. It was shown in evidence that buildings like the one in controversy, which were sold separate from the ground and which had to be moved away, had a recognized value. In estimating that value...