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

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

70 Mo. 243

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.

The plaintiff in his petition claimed damages for two fires, one alleged to have occurred on the 1st day of February and the other on the 3rd day of February.

Chas A Winslow with A. W. Mullins and George W. Eastey for appeliant.

1. There being no fact shown, mdependent of the mere escape of fire, from which negligence may be found, the loss in damnum alsque injuria. Turnpike Co. v. Railroad Co., 54 Pa. St. 345; Railroad Co. v. Hendrickson, 80 Pa. St. 182; Flynn v. Railroad, 40 Cal. 14: s. c., 6 Am. note p. 597.

2. There is no absolute presumption of negligence growing out of the fact that fire escaped from the engine. It is but an inference of fact, at the most, which is rebutted by showing that the “best machinery and contrivances were used to prevent such a result, and that careful and competent servants were employed.” No contrivance has yet been invented to entirely prevent the escape of sparks from an engine. All that reason and prudence can possibly require is, that the most approved appliances shall be used and placed in the hands of skillful and careful servants. When this has been done, there can be no such thing as negligence predicated on the mere escape of sparks, and in order to make out a case for recovery, other elements of negligence must be shown. It is only for the negligent use of fire that railroad companies are responsible. Fire is a dangerous element, and yet one absolutely necessary for the generation of steam. Without its use in this respect the advancing civilization of the age must stand still. While this demand does not justify total immunity from damages occasioned by its use, it does not require that those who use it shall become insurers against consequent damages under all circumstances. The full measure of duty in this regard is, that those safeguards which the inventive genius of the age has produced and experience tested, shall be applied to prevent casualties, and that no negligence shall supervene in their use. Wharton on Neg., §§ 869, 872; Shear. & Redf. on Neg., § 332; Smith v. R. R., 37 Mo. 287; Fitch v. R. R., 45 Mo. 322; Clemens v. R. R., 53 Mo. 366.

3. The court erred in permitting the old worn-out spark arrester to be paraded before the jury. Coale v. R. R. Co., 60 Mo. 227.Shanklin, Low & McDougal for respondent.

HENRY, J.

Plaintiff sued for damages for the destruction of thirty-five acres of meadow, thirty acres of pasture and 376 yards of hedging, by fire, which, he alleged, through the carelessness and negligence of defendant's agents, &c., in managing a locomotive engine on defendant's road was communicated by sparks emitted by said engine. The answer was a denial of the allegations in the petition. Plaintiff obtained a judgment, from which defendant has appealed.

The evidence as to the origin of the fire was, that just after a train of defendant's cars passed through plaintiff's farm, about ten o'clock a. m., 1st of February, 1876, one witness saw smoke coming down the railroad, and discovered two fires. One did no damage; the other was inside of plaintiff's field, about 100 feet from the center of the track. The plaintiff testified that these fires started immediately after the train passed, and also that on the 3rd day of February, 1876, a fire broke out in his field immediately after the passage of a train of defendant's cars.

While railroad disasters are among the most fruitful sources of litigation, no other class of cases presents more questions of difficulty for judicial determination; and not the least difficult of that class are those growing out of fires communicated by sparks emitted from locomotives attached to passing trains of cars. There are some questions on this subject, well settled in this State, which are open questions elsewhere; while in other States a different doctrine from that prevailing here is equally well established. Since the case of Smith v. The Hannibal & St. Joseph R. R. Co., 37 Mo. 287, was overruled in Fitch v. The Pacific R. R. Co., 45 Mo. 327, it has been uniformly held here that a prima facie case is made out against a railroad company when it is proved that a fire was communicated by sparks from a locomotive engine attached to a passing train, and that it then devolves upon the defendant to show that the escape of sparks was not the result of negligence on its part.

1. NEGLIGENCE OF RAILROAD COMPANY: escape of sparks: sufficiency of evidence.

Another question is presented by this record, which has not been directly passed upon by this court, with regard to the sufficiency of evidence to prove that the fire was occasioned by sparks emitted by the locomotive. The defendant contends that the evidence that the fire was so communicated was not sufficient to warrant the submission of the case to the jury, there having been no direct evidence that sparks were emitted by the locomotive in question.

One of the bases of evidence is, “the known and experienced connection subsisting between collateral facts or circumstances, satisfactorily proved, and the fact in controversy.” 1 Greenleaf Ev., 17. It is recognized even in criminal prosecutions, as in the case of the possession of goods recently stolen, accompanied with personal proximity in point of time and place, and the inability of the possessor to show how he came by them. These facts warrant the inference that the possessor stole them. They are prima facie evidence of guilty possession. From the facts established the unknown fact is deduced, and is by the law presumed, and if the facts found, from which the other fact is presumed, be “unexplained, either by direct evidence, or by the attending circumstances or by the character and habits of life of the possessor, or otherwise, it is taken as conclusive.” “Upon an indictment for arson, proof that property which was in the house at the time it was burned, was soon afterwards found in the possession of the prisoner, was held to raise a probable presumption that he was present and concerned in the offense.” 1 Greenleaf Ev., 47, Mr. Greenleaf says: “It is the legal application of a process familiar in natural philosophy, showing the truth of a hypothesis by its coincidence with existing phenomena.”

The locomotive carries fire; sparks escape from locomotives; a locomotive passed through plaintiff's field; no fire was seen in the field until after it passed, and immediately afterwards the fire broke out in the field. If A sue B for setting fire to his meadow, and the proof shows that the defendant was seen going through plaintiff's field carrying fire in a vessel from which, without care on his part, it might escape, and that immediately after he went through the field the meadow was discovered to be on fire, no fire having been seen there before, would a court be justified in declaring that there was no evidence to charge defendant with having carelessly set fire to the meadow? It may be, and is plausibly argued that it might have originated in other sources, and that it would be a hardship to hold the company...