Kelley v. Wabash Railroad Company

• Decision Date: 07 November 1910
• Citation: 131 S.W. 718,151 Mo.App. 307
• Parties: E. M. KELLEY, Respondent, v. WABASH RAILROAD COMPANY, Appellant
• Court: Kansas Court of Appeals

131 S.W. 718

151 Mo.App. 307

E. M. KELLEY, Respondent, v. WABASH RAILROAD COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

November 7, 1910

Appeal from Livingston Circuit Court.--Hon. Francis H. Trimble Judge.

AFFIRMED.

J. L Minnis and J. M. Davis & Son for appellant.

The demurrer to plaintiff's evidence should have been sustained, because there was no sufficient evidence to establish prima facie that the fire that burned plaintiff's property was set by an engine on defendant's railroad, nor any fact from which such an inference might properly be drawn. Under such circumstances the court should have given the instruction in the nature of a demurrer to the evidence at the close of plaintiff's evidence as well as at the close of all the evidence. Peck v. Railroad, 31 Mo.App. 123; Peffer v Railroad, 98 Mo.App. 291; Gibbs v. Railroad, 104 Mo.App. 276; Funk v. Railroad, 123 Mo.App. 169; Sheldon v. Railroad, 29 Barb. 226; Ottis v Railroad, 112 Mo. 622.

Frank S. Miller and Scott J. Miller for respondent.

(1) Under the law in this state the demurrer to the evidence was properly overruled. Rogers v. Ptg. Co., 103 Mo.App. 683; Cole v. Transit Co., 183 Mo. 94, and cases cited. Curtis v. McNair, 173 Mo. 282; Bowen v. Railroad, 95 Mo. 274; Hamilton v. Mining Co., 108 Mo. 373; Jones v. Railroad, 178 Mo. 549; Doyle v. Trust Co., 140 Mo. 1; Scott v. Springfield, 81 Mo.App. 312; Huth v. Dohle, 76 Mo.App. 671. (2) Unless the evidence offered by plaintiff is incredible, the appellate court says: "We are compelled to accept it as substantial testimony, in support of his case." Winkle v. Dry Goods Co., 132 Mo.App. 656. (3) This appellate court will not disturb a judgment, unless the verdict upon which it is based is entirely unsupported by substantial evidence. Bradford v. Railroad, 119 S.W. 123; Hunt v. Ancient Order of Pyramids, 105 Mo.App. 41; Tusig v. Wind, 98 Mo.App. 129. And, in the first case cited, Judge Broaddus says: "Such is the general rule in this state."

OPINION

BROADDUS, P. J.

This is a suit to recover from the defendant company the value of ninety tons of hay and other personal property destroyed by fire alleged to have been set out by one of defendant's engines.

The fire is alleged to have been started on the south side of the defendant's track, the railroad at that point being located on a line east and west. The fire occurred on the 18th day of February, 1908. A witness by the name of Brotzer testified that; he had a farm adjoining that of plaintiff; that on the day in question he was hauling wood and that he watched the fire closely; that at three o'clock he saw the passage of a freight train going east; that after having got his wagon partly loaded his attention was called to the direction of Parson's Creek, over which the railroad passed and he saw a fire there which was about one hundred yards south of the creek; that the fire looked to be close up to the track but that he could not tell from where he was; and that at this time there was a little breeze from the southeast. The court said to him. "You say it was on the right of way where the fire had been burning?" A. "It had just started over in the pasture, it looked as if it had started either in the corner--I didn't go clear down to see whether it burned in the pasture, or on the right of way or not." Q. "How far is that from the plaintiff's property?" A. "A half mile I reckon." He then resumed: "And the fire was coming from the southeast, it was burning all along clear up to the railroad track, but it was kind of back burning, because the breeze did not stop it at the timber, and after it got out further the breeze struck it," etc. Q. "Is that the fire that burnt up plaintiff's property?" A. "Yes, sir. The fire run up through the railroad track--there was heavy grass in this pasture, and it ran up in the woods and it burnt all night and the next morning I was hauling wood and I saw there was still the same fire up in the woods, and just about sun-up the wind whirled around and got in the northwest or rather in the north, it took back down and ran straight through Mr. Kelley's premises." He stated that the fire started in about thirty minutes after the train passed.

Another witness by the name of Bloss who lived on a farm adjoining plaintiff's, testified that he saw the engine pass going southeast about three o'clock. He was asked: "Did you notice this fire start?" A. "Yes, sir." Q. "Where were you when you noticed the fire start?" A. "I was a little south of that fire, south like, three-quarters of a mile as near as I can tell." Q. "Where did the fire start? Go ahead and tell all about it." A. "The fire started as near as I can recollect somewhere near the track--looked like near the railroad track, where the fire started, close to the track south--there was some little timber between us." He stated on further questioning that the fire started close to the right of way, but could not tell how far away. He also stated that he discovered the fire in a few minutes after he saw the train pass. It was shown by the company's foreman that the defendant's engine was emitting sparks of fire and did in fact let out fire on the north side of the railroad track as it went by, which he and his men extinguished.

The plaintiff introduced evidence as to the ownership and value of the property destroyed. The defendant's evidence tends to show that the fire on the south of the railroad which destroyed plaintiff's property started a half mile from the right of way; and that the fire on the north...