Matthews v. Missouri Pac. Ry. Co.

• Decision Date: 23 November 1897
• Citation: 44 S.W. 802,142 Mo. 645
• Parties: MATTHEWS v. MISSOURI PAC. RY. CO.
• Court: Missouri Supreme Court

44 S.W. 802

142 Mo. 645

MATTHEWS v. MISSOURI PAC. RY. CO.

Supreme Court of Missouri, Division No. 1.

November 23, 1897.

RAILROADS — FIRE FROM LOCOMOTIVE — TESTIMONY — ADMISSIBILITY — ERROR CURED — TRUST DEED — PARTIES — LIABILITY FOR LOSS OF PROPERTY INSURED — EFFECT OF STATUTE — RAILROAD INSURER OF BURNED PROPERTY — INSTRUCTIONS — MEASURE OF DAMAGES — CONTINUANCE — DEPOSITION OF ADVERSE PARTY.

1. In an action to recover for fire communicated by defendant's locomotive, testimony of a witness that he saw, subsequent to the fire, a spark from an engine, on defendant's road, strike a tent, which had been erected on the site of the burned barn, was admissible as tending to prove the probability that the fire was communicated to plaintiff's property by sparks from one of defendant's engines.

2. Where improper evidence for plaintiff was admitted, and afterwards, on motion of defendant, stricken from the record, the error is cured.

3. Where plaintiff gives another a trust deed of his farm as security for a note to a third person, and before the maturity thereof, sues a railroad for damages for burning a barn on the farm, and the note was paid by a sale of the premises, before judgment was rendered, the plaintiff was the real party in interest, and the proper party to maintain the action.

4. A railroad company is liable to the owner for the full value of the property destroyed by sparks from its locomotive, notwithstanding the owner had insured the property, and collected the insurance.

5. The effect of Rev. St. 1889, § 2615, providing that railroad corporations shall be responsible for property injured by fire from its locomotives, is to make the railroad company an insurer against loss by fire communicated by its locomotives, and contributory negligence of the owner in the lawful use of his property, short of fraud, constitutes no defense to an action for damages therefor.

6. Where an instruction is correct, if it is thought to be too general, more specific instructions should be requested.

7. The measure of damages against a railroad company for the loss of a building by fire is the value of the building, at the time of its destruction.

8. In an action against a railroad company for destruction of a building by fire from defendant's locomotive, testimony of witnesses as to

the original cost of the building is admissible, though materials may then have been more costly than when the building was burned, as defendant has the right to show the difference in the cost and depreciation of the material.

9. Testimony of witnesses who know a building, and are familiar with the cost of such buildings, as to its value, is admissible.

10. Where plaintiff admitted that two witnesses, if present. would swear to the facts set out in an affidavit for continuance, and such facts were read by defendant on the trial, as to the testimony of one witness, and the other was present, though not called as a witness, there was no prejudicial error in refusing a continuance.

11. Rev. St. 1889, § 8920, giving a party to a civil action the right to compel the adverse party to testify as a witness in his behalf in the same manner as other witnesses, does not mean that the deposition of an adverse party may be taken, for the purpose of forcing him to disclose the evidence on which he relies, and the testimony he will give on the trial; and defendant is not entitled to a continuance on the ground that he took the deposition of plaintiff, and had it filed, and at the trial it could not be found, and when last heard of it was in the possession of plaintiff, if plaintiff was present when the continuance was applied for, and also at the trial.

Appeal from circuit court, Clay county; E. J. Broaddus, Judge.

Action by Alexander B. Matthews against the Missouri Pacific Railway Company for destruction by fire of barn and contents. Judgment for plaintiff. Defendant appeals. Affirmed.

Elijah Robinson and Stewart Carkener, for appellant. Warner, Dean, Gibson & McLeod and Stewart Taylor, for respondent.

MACFARLANE, J.

This is an action under section 2615 of the Revised Statutes of 1889 of the state to recover damages for the destruction by fire of the barn of plaintiff and its contents, charged to have been communicated to them by sparks from one of defendant's engines. The damages claimed for the destruction of the barn is $7,394.21, and for the loss of the contents, consisting of agricultural implements, grain, hay, etc., is $5,042.70. The answer is: First, a general denial; second, contributory negligence; third, a plea in mitigation, on account of insurance collected by plaintiff on account of the loss; and, fourth, that the land was mortgaged as security for a debt, and the mortgagee was a necessary party. A jury trial resulted in a verdict and judgment for plaintiff for $7,000, and defendant appealed.

It appeared from the evidence that plaintiff was the owner of a farm of about 1,000 acres in Jackson county, on the line of defendant's railroad. Plaintiff was a dealer in fine cattle, and the farm was used in his business. About the year 1887 plaintiff built on the farm, near Blue station, and within about 135 feet of defendant's railroad track and switches, a valuable barn, and there after used the same for sheltering his cattle and for storing feed and implements and machinery used on the farm. In the second story of the barn, on the side next the railroad, plaintiff left an opening for the purpose of use in unloading and storing hay and other feed. This opening was provided with a door, which was generally kept closed. On the night of the 1st day of September, 1891, the barn and its contents were burned. The evidence, which was wholly circumstantial, tended to prove that the fire was started by a spark from one of defendant's engines being blown into the opening in the second story, the door of which plaintiff had neglected to close. Defendant offered evidence which proved that prior to the fire plaintiff executed and delivered to one Smart a deed of trust conveying to him the land to secure to one ____ the payment of certain notes therein described. The notes had not matured at the commencement of the suit, but before the trial they were paid by a sale of the land under the deed of trust. It was shown also that at the time the property was burned it was insured for the benefit of plaintiff, and that the insurance was afterwards paid to him.

At the request of plaintiff the court gave to the jury the following instructions: "(3) If the jury find from the evidence that plaintiff was the owner of the barn in controversy, and of its contents, and that they were destroyed by fire coming from an engine operated by defendant upon its railroad on the night of September 1, 1891, then the defendant is liable to plaintiff for the damage done, and although the engine may have been free from defects, and although there may have been no negligence in the management of the engine and train at the time of the fire. (4) If the jury find from the evidence that plaintiff had procured insurance upon the barn in controversy, and upon a portion of its contents, prior to the burning of the barn, and that after the burning of said barn he received certain moneys in settlement of said insurance, said insurance money so received cannot go to diminish the amount of plaintiff's claim, if any, against the defendant; but if the jury, under the evidence and instructions, find that defendant is liable to plaintiff for the burning of the barn and its contents, they must allow plaintiff the full amount of the injury done to his property, without regard to the amount of insurance money he received. (5) If it appears from the evidence that on or about the 6th day of January, 1891, the plaintiff conveyed the land upon which the barn in controversy was located to one David O. Smart as trustee, to secure certain notes due from plaintiff to one F. G. Farrell, and that after the fire in controversy said land was sold under said deed of trust, and the said notes paid in full out of the proceeds of the sale, then plaintiff's cause of action, if any, is not affected by the fact that said deed of trust was upon said land at the time said barn was burned. (6) Even if the jury should believe from the evidence that the windows or doors of plaintiff's barn were open, and that the fire caught from sparks that fell in the hay inside of said barn, that were thrown out by one of defendant's locomotives, yet the jury are instructed that the leaving open of said windows or doors was not such contributory negligence on plaintiff's part as will defeat a recovery by plaintiff, if you believe from the evidence and the other instructions given you that plaintiff is entitled to recover." "(8) The court instructs the jury that, if you find for the plaintiff, you will assess his damages at such sum as you may believe from the evidence the barn and its contents were reasonably worth on the 1st day of September. 1891; and if you believe from the evidence that a portion of said barn, or of its contents, was only partially destroyed by fire on said day, then you will allow plaintiff such sum on the property so partially destroyed as will reasonably compensate him for the loss thereby sustained, taking into consideration the value the property may have possessed for any purpose after its injury. But the jury will not allow anything for the Angus cow sued for, and in estimating the damage the jury will make no deduction on account of any insurance money received by plaintiff."

The court refused to give instructions 7 and 8 asked by defendant as follows: "(7) The court instructs the jury that the deed read in evidence in this case by the defendant vested in the grantee therein named the title to the real estate in question, together with the barn thereon, and placed him in possession thereof, and the plaintiff thereby became a tenant of said grantee; and the court further instructs the jury...