Markt v. Chicago, Burlington & Quincy Railway Co.
| Decision Date | 15 November 1909 |
| Parties | ARTHUR O. MARKT, Respondent, v. CHICAGO, BURLINGTON & QUINCY RAILWAY COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Holt Circuit Court.--Hon. William C. Ellison, Judge.
AFFIRMED.
Judgment affirmed.
Culver & Phillip and E. M. Spencer for appellant.
The court erred in refusing defendant's demurrer offered at the close of plaintiff's case and again at the close of all the evidence. Gibbs v. Railroad, 104 Mo.App 276; Manning v. Railroad, 119 S.W. 464; Campbell v. Railroad, 121 Mo. 340; Erhart v. Railroad, 118 S.W. 657. There is no direct evidence in the record that the fire was communicated from defendant's engine. No witness testified that it was. Plaintiff depended entirely upon circumstantial testimony, and this consisted entirely of the evidence of Mr. Whistler that when the engine started at the depot more than a quarter of mile from the mill, he saw sparks thrown from the smokestack "as high as a telegraph pole;" the testimony of plaintiff that as the train passed the mill he heard perhaps a dozen cinders rattle against the office window on the first floor of the mill, and the testimony of several witnesses that the smoke appeared or that they heard the alarm of fire ten or fifteen minutes after the train departed. But this falls short of the requirements of the law in view of the other undisputed evidence in the case, and certain physical facts disclosed in the records which absolutely negative the theory that the fire originated from the engine. (a) The fire originated inside the building. The building stood fifty feet and four inches from the center of the track. The only opening in the building was a broken window pane 8x10 inches in the second story thirty-five feet above the defendant's roadbed. It was through this opening that plaintiff was forced to conclude, and did insist, the spark flew burning into the building. Not one word of testimony was offered to show that an engine going down grade (as it was in this case) drawing three cars, or any engine, for that matter, would throw a spark burning a distance of fifty feet. Was the absence of such testimony fatal to the plaintiff's case? If the verdict of the jury is the result of passion and prejudice the appellate court will set it aside. Lehnick v Railroad, 118 Mo.App. 611; Walton v. Railroad, 49 Mo.App. 620; Garrett v. Greenwell, 92 Mo. 120; Gage v. Trawick, 94 Mo.App. 307; Kennedy v. Transit Co., 103 Mo.App. 1.
B. R. Martin, R. B. Bridgman and Charles C. Crow for respondent.
The facts in this case are such as to bring it clearly within the rule announced in the following cases: Tapley v. Railroad, 107 S.W. 656; England v. Wabash, 114 Mo.App. 547; Lead Co. v. Railroad, 123 Mo.App. 402; Erhart v. Railroad, 129 Mo.App. 90. In this case it was shown that the engine was throwing sparks as high as telephone or telegraph poles before reaching the mill; that it was blowing and puffing at the building and near the open window. It was not, and could not be shown that the fire was caused by any agency other than sparks from the engine of the locomotive.
This is a suit to recover damages for loss sustained by plaintiff by the burning of his mill and electric plant, alleged to have been set on fire by sparks from one of defendant's locomotive engines. The plaintiff obtained judgment from which defendant appealed.
As the appellant has taken his appeal upon the sole ground that the respondent was not entitled to recover under the proof, it is necessary to examine all the material evidence in the case for a proper determination of that question.
There is no question that the fire occurred about nine o'clock a.m. June 27, 1907, and that the property mentioned was entirely destroyed by fire. The building was located in the town of Maitland, Missouri, fifty feet and four inches from the line of appellant's railroad track. The depot is situated on the west side of the track, which after leaving the depot curves to the southwest and is about fifteen hundred feet from where plaintiff's building was located, which was also situated on the west side of the track. The building was a two story and basement structure covered with metal. In the basement were the engines, boilers and machinery. In the first story were the mill machinery, feed room, and office; and in the second story was the machine for cleaning meal and grain and other material.
No one saw how the fire started, so it is a matter to be inferred from the evidence, if the appellant is to be held liable. As the respondent was the only person in and about the building just previous to its discovery the case depends largely upon his evidence. He stated, that the line of the railroad extended in a semicircle from the depot and then in a southwesterly direction past his building which faced the railroad to the southwest; that there were four doors and three windows on the south side facing the track; that there was an opening in the window of the upper story on the south side about ten by eight inches where a pane of glass had been broken a few weeks previously; that the weather was dry; that there was chaff scattered on the upper floor near this opening and dust and cobwebs in the room, also some sacks and lumber; that he went to the building on the morning of the fire about fifteen minutes after five o'clock; that he went in and got some feed, and then went through and milked his cow on the other side of the railroad track, and then came back and through the building again and then to his breakfast; that one Frank Ross had been in charge of the machinery until midnight the night before after which no one was in charge; that he returned to the building about seven o'clock and remained there until about nine fifteen o'clock; that he during this time went through the building, first to the boilerroom to see the condition of the fire and found that it was banked, and in good condition, and he did not disturb it; that he examined the condition of the furnace and that everything was all right and the fire well banked; that he then went upstairs opened the doors and swept the first floor; that he then figured up some coal accounts and did a little book work and writing; that he saw a train pass while he was in the electric plant office; that when it passed he heard cinders rattle on the southeast window; that it sounded like the rattling of hail; that he remained there until a drayman drove up with a package and delivered it to him; that he then went out to a storage-room northwest of the building where he had his workshop, at which time it was about fifteen minutes after the train had passed; that in a few minutes he started to the barn of his residence, just across the street; that as he was crossing Mr. and Mrs. Southwell who were driving in a buggy came along and as they passed Mr....
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