Manning v. Cape Girardeau & C. Ry. Co.

• Decision Date: 11 May 1909
• Citation: 137 Mo. App. 631,119 S.W. 464
• Parties: MANNING v. CAPE GIRARDEAU & C. RY. CO. et al.
• Court: Missouri Court of Appeals

119 S.W. 464

137 Mo. App. 631

MANNING v. CAPE GIRARDEAU & C. RY. CO. et al.

St. Louis Court of Appeals. Missouri.

May 11, 1909.

RAILROADS (§ 482)—FIRES—ACTIONS FOR INJURIES —SUFFICIENCY OF EVIDENCE.

The evidence in an action against a railroad company for damages from fire communicated by its locomotive is insufficient to sustain a verdict for plaintiff, where there is no evidence that sparks were emitted by the locomotive as it passed plaintiff's property, nor that a fire could be kindled by sparks or coals thrown out by a locomotive on property at the distance from the locomotive that plaintiff's property was located.

Appeal from Circuit Court, Cape Girardeau County; Henry C. Riley, Judge.

Action by Columbia A. Manning against the Cape Girardeau & Chester Railway Company and others. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

The purpose of this action is to obtain damages caused by the burning of certain buildings owned by plaintiff in the village of Oak Ridge, in Cape Girardeau county. These buildings, a four-room frame cottage, a smokehouse, and poultry house, were alleged to be of the value of $1,000. They were burnt November 11, 1906, and the averment of the petition is the fire originated from sparks thrown from a locomotive operated by defendants on their railroad. A general denial was filed. Plaintiff's cottage was about 50 feet from the track, part of it standing on the right of way. It was occupied by a tenant named Simmons, who was employed by defendants. The cottage was a one-story building with a shingle roof and a porch in front covered with tin or sheet iron. The roof of the porch was against the eaves of the house. The fire occurred late in the afternoon. A woman who lived a quarter of a mile away swore that immediately after the train had passed the house she saw a bright spot which she thought was the sunlight shining on a piece of tin fixed at the edge of the roof of the house proper until she observed the sun was not shining; then thought the brightness might be a fire, but was not certain. It was in the roof right at the edge of the porch next to the tin on the porch roof and several feet from the flue which arose from the comb of the house. This witness did not see any sparks emitted from the locomotive as it passed. The house is situated on the south side of the railroad, and the wind was blowing from the train toward it. Witness gave no alarm because she was not sure what she saw was fire. Another woman testified she saw the fire from her house about a quarter of a mile away half an hour after the train had passed. It was then a small fire on the roof of the main building above the porch, and there was no fire around the flue. She saw the train go by the house, but did not see it throw sparks. Still another witness testified to noticing the fire half an hour after the train had passed, when the fire was not very large, but had got up on the side of the roof, "a right smart from the edge of the tin roof." It was burning down from the edge of the tin roof, but was going up the side. This witness said the locomotive was emitting sparks as the train passed. She saw it throw sparks when climbing the grade before it reached the house and after it left the depot, but did not notice sparks as it passed the house, which was on a level piece of track. Still another...