Kenney v. Hann. & St. Jo. R.R. Co.

• Decision Date: 31 May 1876
• Citation: 63 Mo. 99
• Parties: PATRICK KENNEY, Respondent, v. THE HANN. & ST. JO. R. R. CO., Appellant.
• Court: Missouri Supreme Court

63 Mo. 99

PATRICK KENNEY, Respondent,

v.THE HANN. & ST. JO. R. R. CO., Appellant.

Supreme Court of Missouri.

May Term, 1876.

Appeal from Caldwell Circuit Court.

James Carr & H. B. Leach, for Appellant.

There was no proof of negligence in supplying insufficient or defective appliances, or of want of care and skill on the part of defendant's engineers. The proof clearly showed the contrary; and the mere fact that engine No. 22 emitted sparks is not negligence per se. (40 Cal. 14; 18 Barb. 80; 8 Barb. 366; 4 Md. 242; 2 Am. R. R. Cas. 30; 14 N. Y. 218; 2 Strob. 356;Sherm. & Redf. Negl. § 332, p. 395.) An engine properly constructed must emit some sparks.

The company not being in fault as to the quality and character of their equipments, the special risks incident to proximity to railroad trains must be borne by those who established themselves in such localities. (20 Mich. 244.)

The petition charges no negligence save that of those who managed the locomotive. Hence the first instruction for plaintiff changes the issues made by the pleadings. (34 Mo. 453.)

Defendant's instructions should have been given. (Fitch vs. Pac. R. R. Co., 45 Mo. 456.)

Shanklin, Low & McDougal, for Respondent.

The conduct of defendant's employees in failing to extinguish the fire was gross negligence. (26 Wis 537.)

The judgment ought not to have been reversed for a technical variance, as the evidence was received without objection. It is now too late to complain. (Wagn. Stat., 1033, § 1; 60 Mo. 268.) The variance was immaterial. (19 Mo. 192; 44 Mo. 313.)

The jury were properly directed in regard to allowing interest. Plaintiff was entitled to interest at common law, and that right was not taken away by the statute. (Wagn. Stat., 1033, § 1.)

See generally Chappman vs. C. & N. W. R. Co., 26 Wis. 303. Mote vs. C. & N. W. R. R. Co., 27 Iowa, 22; Kyle vs. Laurens R. R. Co., 10 Rich. [S. C.] Law, 382; Blumenthal vs. Brainerd, 38 Vt. 402; Bradley vs. Geiselman, 22 Ills. 494; C. & N. W. R. R. Co. vs. Shultz, 55 Ills., 421; Sedgw Meas. Dam. 476, 386 and note 1; Holmes vs. Barclay, 4 La. Ann. 63; Parrott vs. Knickerbocker Ins. Co., 46 N. Y. 361; Walrath vs. Redfield, 18 N. Y. 462; King vs. Shepherd, 3 Sto. 349; Jackson vs The Julia Smith, 6 McLean, 484; Cunard vs. Pac. Ins. Co., 6 Pet. 262; 2 Bened. 47; Wolf vs. Lacey, 30 Tex. 349; Hogg vs. Zanesville Canal, etc. Co., 5 Ohio, 410; Smith vs. Whitman, 13 Mo. 352.NAPTON, Judge, delivered the opinion of the court.

The petition in this case charged that the defendant by “their agents and servants so carelessly and negligently ran and managed a locomotive engine on their said railroad in said county, that fire escaped therefrom into adjoining lands, owned and occupied by plaintiff, and consumed and destroyed” certain property described, of the value of $2,920.

The answer is merely a denial of the allegations of the petition, and an averment that the injuries were caused by the plaintiff's own negligence; to which latter clause of the answer there was a replication.

The proof was that immediately after the passage of a passenger train of the defendant, about half past nine in the morning of August 30th, 1873, the defendant's gang of section laborers, who when at work about a quarter of a mile from the plaintiff's farm, saw the smoke of the fire near the railroad track, but never went near the fire until about noon, when the fire had attained such progress, and the wind was so high, that all efforts to arrest it were useless. The fire burned slowly until about noon, when they went to dinner, and upon their return from dinner the fire was beyond control. The weather was dry, and there was dry grass on the defendant's right of way.

The defendant proved, or gave evidence to prove, that the locomotive attached to the train was in a perfect state of repair, and supplied with the most approved spark arresting smoke-stack and ash pan, and that the engineer in charge was competent and skillful, and exercised great care, etc.

The court instructed the jury, that if they believed from the evidence that fire escaped from defendant's locomotive engine No. 22, in proof, and was communicated to the grass, or other combustible matter on the right of way, adjacent to defendant's railroad, about half past nine o'clock on the 30th August, 1873, and that defendant's employees, so working in the vicinity, saw said fire in time to have extinguished the same, by the exercise of reasonable care and prudence, before it extended to and upon the premises of plaintiff, in proof; and that said fire did extend to and upon plaintiff's said premises, and caused the...