Mathews v. The St. Louis & San Francisco Railway Company

• Decision Date: 24 March 1894
• Citation: 24 S.W. 591,121 Mo. 298
• Parties: Mathews v. The St. Louis & San Francisco Railway Company, Appellant
• Court: Missouri Supreme Court

24 S.W. 591

121 Mo. 298

Mathews v. The St. Louis & San Francisco Railway Company, Appellant

Supreme Court of Missouri

March 24, 1894

Appeal from St. Louis City Circuit Court. -- Hon. L. B. Valliant Judge.

Affirmed.

E. D Kenna for appellant.

(1) Section 2615 of the Revised Statutes of 1889 is unconstitutional, because: First. It impairs the obligation of the contract contained in defendant's charter. R. S 1889, sec. 2543; Fletcher v. Peck, 6 Cranch, 87; Dartmouth College v. Woodward, 4 Wheat. 518; U. S. v. Quincy, 4 Wall. 535; Greene v. Biddle, 8 Wheat. 92; Planter's Bank v. Sharp, 6 How. 327; Commissioners v. Trans. Co., 107 Pa. St. 112; Railroad v. Railroad, 60 Md. 263; Bank v. Hamilton, 21 Ill. 53; Payne v. Baldwin, 3 S. & M. 661; Edwards v. Kearsey, 96 U.S. 607; Howard v. Bugbin, 24 How. 461; Meriwether v. Garrett, 102 U.S. 472; Bronson v. Kinzey, 1 How. 311; McCracken v. Hayward, 2 How. 608; Louisiana v. N. O., 102 U.S. 203; Gas Co. v. Gas Co., 115 U.S. 668; Waterworks Co. v. Rivers, 115 U.S. 82; People v. Road Co., 9 Mich. 285; Sloan v. Railroad, 61 Mo. 24; Smith v. Railroad, 37 Mo. 295; Wharton on Negligence, sec. 668. Second. It denies defendant the equal protection of the laws. Pierson v. Portland, 69 Me. 269; State v. Hays, 81 Mo. 586; Railroad v. Moss, 60 Miss. 641; Slaughterhouse Cases, 16 Wall. 336; Railroad Tax Case, 13 F. 722; Santa Clara County v. Railroad, 118 U.S. 394. Third. It takes defendant's property without due process of law. Railroad v. Lackey, 78 Ill. 57; Small v. Railroad, 51 Iowa 340; Zeigler v. Railroad, 58 Ala. 594; Miller v. Martin, 16 Mo. 508; Khale v. Hobin, 30 Mo.App. 476; Catron v. Nichols, 81 Mo. 82; Wally's Heirs, 2 Yerg. 554. (2) Said section, if valid, only makes the fact of the injury prima facie evidence of negligence. Small v. Railroad, supra, Dill v. Railroad, 32 Am. and Eng. R. R. Cases, 324; Khale v. Hobin, supra; Catron v. Nichols, supra. (3) Said section does not authorize damages for property upon which plaintiff could not have obtained insurance. Chapman v. Railroad, 37 Me. 92. (4) Plaintiff was not entitled to damages for his personal property. Chapman v. Railroad, supra. (5) The question of plaintiff's contributory negligence should have been submitted to the jury. Ross v. Railroad, 6 Allen, 92. (6) Plaintiff was compensated for his loss in the condemnation proceedings instituted by the defendant. Small v. Railroad, supra. (7) The defendant should have been allowed to prove the amount of insurance which plaintiff had upon his buildings at the time they were destroyed.

J. G. Chandler, for respondent.

(1) Section 2615, Revised Statutes, 1889, is constitutional. Grissell v. Railroad, 9 A. 137; Railroad v. De Busk, 20 P. 752; Rodemacher v. M. & St. Paul Railroad, 41 Iowa 297; Jones v. Railroad, L. R. 3 Q. B. 733; Hooksett v. Railroad, 38 N.H. 242; Lyman v. Railroad, 4 Cush. 288; Hart v. Railroad, 13 Metc. 105; Ross v. Railroad, 6 Allen, 90; Chapman v. Railroad, 37 Me. 92; Pratt v. Railroad, 42 Me. 579; Pierce v. Railroad, 105 Mass. 199. (2) Appellant's charter, while authorizing the use of steam as a motive power, in no way exonerates it from liability to others for damages occasioned by its use. If it did, it would be unconstitutional and void. R. S. 1889, sec. 2543; Const., art. 12, secs. 5, 14. (3) The owner of land adjoining a railroad is not chargeable with contributory negligence for allowing dry grass and other combustible material to be on his premises. Palmer v. Railroad, 76 Mo. 217; Patton v. Railroad, 87 Mo. 117; 2 Wood's R'y Law, sec. 326, note 1, and sec. 330; Railroad v. Schultz, 93 Pa. St. 341; Railroad v. Medley, 75 Va. 449; Railroad v. Hixon, 79 Ind. 111; Railroad v. Jones, 86 Ind. 496. (4) Wrongdoers can have no benefit from payment by the insurer. May on Insurance, sec. 455; Harding v. Townsend, 43 Vt. 536; Monticello v. Mollison, 17 Howard (U.S.), 152; Carroll v. Mo. Pac. Railroad, 88 Mo. 239; Hammond v. Schiff, 6 S.E. (N. C.) 753; Hart v. Railroad, 13 Metc. 105; Ross v. Railroad, 6 Allen, 90.

Gantt, J. Brace, Burgess and Macfarlane, JJ., concur. Barclay, J., in the result. Sherwood, J., dissents.

OPINION

In Banc

Gantt J.

This is an action for damages caused by the destruction and injury to plaintiff's property, a suburban residence and grounds, near the city of St. Louis, in St. Louis county, by fire alleged to have been set out by an engine, operated by the defendant on its railroad.

The petition contains two counts, the first being an action at common law, charging "that on the ninth day of August, 1887, and for a long time prior thereto, defendant negligently suffered a large amount of dry grass, weeds, and rubbish to accumulate and remain upon and along its railway and right of way adjoining the land of the plaintiff, and used and employed in operating said railway, locomotive engines and other machinery, that were improperly and negligently constructed so that sparks of fire could and did needlessly escape said engines," and that by reason of such negligence fire was communicated to said dry grass, weeds and rubbish and extended to plaintiff's land and destroyed a dwelling house, barn, outbuildings, personal property therein, trees, and shrubbery of the value of $ 30,000, for which judgment is prayed.

The second count is based upon the statute (R. S. 1889, sec. 2615), and charges that the defendant owned and operated a railroad adjoining plaintiff's land, "having locomotive engines in use on the same and on said ninth day of August, 1887, fire was communicated from a locomotive engine, then in use upon said railroad owned and operated by defendant as aforesaid, to plaintiff's property on his said land" and then avers the destruction of the same property, of the same value as charged in the first count, and avers damages in, and prays judgment for, the same amount.

The answer admits the incorporation of defendant and the operation of the line of railway described in the petition, and the use of locomotive engines thereon and denies generally every other allegation in the petition; and then, as special defenses to each count of the petition, avers:

"1. That plaintiff has assigned to persons to this defendant unknown his right of action against this defendant, if any he ever had, and is neither a necessary or proper party plaintiff herein and is not the real party in interest, and is not, therefore, entitled to maintain or prosecute this action.

"2. That there is a defect of plaintiff in this, to wit: That the Detroit Fire and Marine Insurance Company, the Commercial Union Insurance Company, and the Imperial Fire Insurance Company, and each and every one of them are parties in interest in this case, and are necessary parties plaintiff herein.

"3. That on the date and at the time in the petition mentioned there was growing and standing upon the property in said petition described adjacent to and continuous from the right of way of defendant to the house, shrubbery and trees of plaintiff, in his petition described, large quantities of dry grass, leaves, weeds and other combustible and highly inflammable matter which were carelessly and negligently allowed to grow and accumulate upon said premises by and with the knowledge and consent of plaintiff. That the accumulation of dry combustible and highly inflammable matter as aforesaid had been carelessly and negligently allowed to remain upon said premises for a long time previous to the ninth day of August, 1887, to wit, for many years. That it was gross negligence for plaintiff to allow said dry and combustible matter to accumulate and remain upon his said premises without taking precautions to prevent the spread of fire which might accidentally be set upon the right of way of defendant railway company, or which might accidentally escape from passing engines, which said negligence of plaintiff did proximately and directly contribute to the injuries of which he complains.

"4. That the said dwelling house, barn and outbuildings in the petition described were, on the ninth day of August, 1887, insured in certain insurance companies named in the answer for the aggregate sum of $ 10,000, which, as defendant avers, was greatly in excess of the real value of said dwelling house, barn and outbuildings. That said insurance companies after the fire in plaintiff's petition alleged, paid to said plaintiff the sum of $ 10,000 on account of the loss sustained by reason of the burning of said dwelling house, barn and outbuildings, as aforesaid. Wherefore, defendant says that the sum so paid by the said insurance companies as aforesaid, should be applied pro tanto to the satisfaction of plaintiff's claim, if any he has, which defendant denies."

And the answer, in addition to the above counts, which are common to both counts of the petition, contains the following counts which are addressed to the second count of the petition only:

"5. Defendant avers that the alleged cause of action set forth in the second count of the petition is founded on an act of the legislature of the state of Missouri, entitled 'An act to establish the responsibilities of railroad companies and persons owning or operating railroads for damages by fire communicated by locomotive engines,' approved March 31 1887, which act defendant avers is illegal, unconstitutional and void, in that it seeks to deprive the defendant of its property without due process of law, and is contrary to the provisions of section 30, article 2, of the constitution of the state of Missouri.

"6. That the said act of the legislature is illegal unconstitutional and void, in that it denies the defendant the equal protection of the law, contrary to the provisions of section 1, article 14 of the amendments to the constitution of the United States; and in...