Kenney v. Hannibal & St. Joseph R.R. Co.

• Decision Date: 31 October 1879
• Citation: 70 Mo. 252
• Court: Missouri Supreme Court
• Parties: KENNEY v. THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant.

70 Mo. 252

KENNEY

v.THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1879.

Appeal from Caldwell Circuit Court--HON. E. J. BROADDUS, Judge.

REVERSED.

Chas. A. Winslow with A. W. Mullins and G. W. Easley for appellant.

Shanklin, Low & McDougal for respondent, cited Bedford v. Han. & St. Jo. R. R. Co., 46 Mo. 456; Coates v. M., K. & T. R. R. Co., 61 Mo. 38; Cooley on Torts, 591, 592.

HENRY, J.

The petition in this case alleged that on or about the 13th day of August, 1873, defendant, by its agents and servants, so carelessly and negligently ran and managed a locomotive engine on its road, where it runs through plaintiff's farm, that fire escaped therefron and was communicated to combustible matter on and in the vicinity of its railroad, and was carelessly and negligently permitted to burn, by defendant's employees in charge of the track, and whose duty it was to put such fire out, and being permitted to burn said fire escaped into adjoining land of plaintiff and consumed and destroyed his meadows, fences, hay, straw and cattle sheds and hog pens. Defendant's answer was a general denial, and also alleged that the injuries sued for were caused by the negligence and want of care of plaintiff, and could and would have been avoided by the exercise of ordinary care and prudence on his part. This the replication denied.

There was a trial, which resulted in a judgment for plaintiff, from which defendant has appealed. The question of contributory negligence, on plaintiff's part, may be dismissed with the remark that there was no evidence to sustain it. The evidence as to the origin of the fire was that of Folsom, and was in substance, that on the morning of August 30th, 1873, he was working for defendant as a section hand at the east end of a section which extended through plaintiff's premises, and that immediately after the passenger rain going east passed, he saw fire spring up after it on the right of way adjoining plaintiff's premises, and after burning on the right of way for some hours, the fire was driven by the wind on to plaintiff's premises, and destroyed the property described in the petition; that no fire was visible along the railroad until after the train passed; that it was very dry, and the wind had been blowing all day. Styles testified to the same facts substantially.

1. NEGLIGENCE OF RAILROAD COMPA. NY: escape of sparks.

It is of no consequence whether there was a great or an inconsiderable accumulation of dry grass on defendant's right of way, in consequence of the negligence of defendant's employees, if owing to their negligence sparks were emitted, or coals of fire, or cinders fell from the engine and set fire to dry grass upon the right of way, and the fire then started was carried by the wind into the premises of the plaintiff. As was held in another case between these parties at the present term of this court, from the facts directly proved, the jury were at liberty to infer that the fire on the right of way was occasioned by sparks emitted, or coals of fire or cinders falling upon it from the engine. See 70 Mo. 243. If the fire was thus kindled on the right of way it was prima facie evidence that it was the result of the carelessness and negligence of defendant's servants; and it was a proximate cause of the damage to plaintiff. It is no defense that the fire originated on the right of way and not in the meadow, but was carried from the road into the meadow by the wind. The injury which the plaintif sustained was directly traceable to the fire which escaped from the engine, and if that escape of fire was in consequence of defendant's negligence, the plaintiff is entitled to recover without regard to any negligence of the company in permitting an accumulation of dry grass upon its right of way.

2. INSTRUCTIONS.

Three of the instructions for plaintiff are identical with those given for plaintiff in the case between these parties before cited. A fourth was given to the effect that if defendant permitted dry grass and other combustible matter to accumulate along the railroad, and the fire was communicated to it, and then escaped to and burned plaintiff's...