McCoy v. Kansas City, St. J. & C. B. R. Co.

• Decision Date: 20 May 1889
• Citation: 36 Mo.App. 445
• Parties: THOMAS W. MCCOY, Respondent, v. THE KANSAS CITY, ST. JOSEPH & COUNCIL BLUFFS RAILROAD COMPANY, Appellant.
• Court: Kansas Court of Appeals

36 Mo.App. 445

THOMAS W. MCCOY, Respondent, v. THE KANSAS CITY, ST. JOSEPH & COUNCIL BLUFFS RAILROAD COMPANY, Appellant.

Court of Appeals of Missouri, Kansas City.

May 20, 1889

Dec 20, 1888.

Appeal from the Atchison Circuit Court. --HON. CYRUS A. ANTHONY Judge.

AFFIRMED.

Statement by the court.

This action is based on a petition containing two counts, the first charging that defendant negligently caused and permitted fire to escape from one of its locomotive engines which was communicated to and destroyed plaintiff's hay and grass.

The second count is for the same loss, but charges that the Chicago, Burlington and Quincy Railroad Company by virtue of a lease from the defendant was operating its trains and engines over defendant's road and that said Chicago Burlington and Quincy Railroad Company, while so operating its trains over defendant's road, negligently permitted fire to escape from one of its engines, etc.

There was no evidence that the fire escaped from defendant's engine but the testimony did tend to show that it escaped from the engine of the Chicago, Burlington and Quincy Company. There was no evidence of a lease or any other contractual relation between these two companies and therefore nothing to sustain the second count and the court so instructed the jury.

Notwithstanding this state of the evidence the court submitted, under the first count, the hypotheses of defendant's servants and engines communicating the fire, and also instructed that defendant was liable under the first count, if it permitted or consented to any other company or person running or operating an engine over defendant's road from which fire was negligently permitted to escape.

As the trial court has instructed that there was no evidence sustaining the second count, we will leave it out of consideration in determining the cause. This leaves the case standing on the first count, which, as has been said, charges that the defendant negligently permitted fire to escape from one of its own engines; while the evidence was that the fire was caused by the negligence of the servants of the Chicago Burlington and Quincy in permitting fire to escape from one of its engines, and that the latter company was and had for a long time been operating its trains over defendant's road, but whether by mere license or by lease does not appear.

At the trial plaintiff offered in evidence the deposition of one William Broderick--in which among others, appeared this interrogatory:

" Q. Did you ever see the freight engine, that usually ran over the road daily between Bigelow and Rule, throw fire before this date?

A. I have. Can't say how long before that time. Pretty near every time the engine came off the ‘ wye’ heavily loaded, it threw fire."

Defendant objected to the reading of this interrogatory for the reason that the same was leading, irrelevant, immaterial and incompetent. The court overruled the objection, and permitted the interrogatory and answer to be read in evidence to which defendant excepted.

Huston & Parrish, for the appellant.

(1) The demurrer to the evidence ought to have been sustained. ( a ) Because the undisputed evidence shows that the fire was set out (if set out by either) by the Chicago, Burlington and Quincy Railroad Company, and not by the defendant, and the respondent wholly failed to show any relation existing between the defendant and said Chicago, Burlington and Quincy Railroad Company that would render the defendant liable for any damage done the plaintiff by said company. The statutes of 1879--amended in an unimportant matter, so far as this case is concerned, by the Acts of 1881--makes provisions by which one company may lease its road to another company, to be operated by the lessee, and provides that corporations of this state, leasing its road to a corporation of another state, " shall remain liable as if it operated the road itself." 1 Stat. 1879, p. 135, 790; Acts, 1881, p. 77. If the defendant would not be liable for the acts of the Chicago, Burlington and Quincy Railroad Company at common law, then, if liable at all, it must be made so by statute. Under the statute the defendant is not liable in this case for the acts of the Chicago, Burlington and Quincy Railroad Company, because the relation of lessor and lessee does not exist. The legislature having had the matter of liability of one railroad company for the acts of another under consideration, and having provided in what cases such liability will attach, must be presumed to have had in contemplation the whole matter, and everything not named must be excluded. Matthews v. Skinner, 62 Mo. 329-34; McGuire v. Sav. Inst., 62 Mo. 344-46; Ex parte Snyder, 64 Mo. 58-61. Under the evidence in this case the defendant is not responsible for any damage done the plaintiff by the Chicago, Burlington and Quincy Railroad Company at common law. First. There is no evidence that said company was running over defendant's road with its knowledge or license. Second. That if said company was running over defendant's road with its license, then the evidence failed to show that the damage complained of was the result of any wrongful act of the defendant in giving the license, but was the result of the wrongful act of the Chicago, Burlington and Quincy Railroad Company in passing over the road. Hughes v. Railroad, 66 Mo. 325; Fish v. Dodge, 4 Denio 311-16-17; Dichett v. Duyvial, 67 N.Y. 425. So far as this case is concerned the defendant stands on the same footing as a natural person, and if the defendant gave a license to the Chicago, Burlington and Quincy Railroad Company to run its trains over defendant's road, without a knowledge that such use of said road would prove a nuisance, it would not be liable. Fish v. Dodge, 4 Denio 317; Swords v. Edgar, 59 N.Y. 28-34-35; Rich v. Basterfield, 4 Man. Gr. & Scott, 783; Miller v. Staples, 37 Iowa 532; Radclif v. Mayor, 4 N.Y. (4 Const.) 195-200; Hughes v. Railroad, 66 Mo. 325, supra, and authorities above cited. (b ) The demurrer ought to have been sustained, because the plaintiff abandoned the causes of action stated in both counts of his petition, and was permitted to recover on an entirely different state of facts than those stated in either count. That is, in the first count it is charged that the defendant was operating the road and set the fire. In the second count it is charged that the Chicago, Burlington and Quincy Railroad Company was operating the road under lease from the defendant and set the fire, and the plaintiff was permitted to recover on the theory that if any company or persons, not operating the road, ran over and along the same by the license of the defendant, and set the fire, the defendant was liable. These facts were not stated as plaintiff's cause of action, and it was manifest error in the court to permit him to recover upon them. Lennox v. Harrison, 88 Mo. 491-95; Bulline v. Smith, 73 Mo. 151-59-62, and authorities cited; Price v. Railroad, 72 Mo. 414; Bank v. Armstrong, 62 Mo. 59, and cases cited; Wolnier v. Railroad, 71 Mo. 514; Edens v. Railroad, 72 Mo. 212; Light v. Railroad, 89 Mo. 106: Kenney v. Railroad, 70 Mo. 252; Ely v. Railroad, 77 Mo. 34; Abbott v. Railroad, 70 Mo. 668; Fuller v. Edwards, 18 Mo.App. 677; Scott v. Robards, 67 Mo. 289-92-93; Smith v. Railroad, 37 Mo. 287-93 If the theory upon which the plaintiff tried his case is the correct one, then it follows as a necessary consequence, that the plaintiff can not recover under the pleadings in this case, as the defendant's negligence did not consist in the use of a defective engine by the Chicago. Burlington and Quincy Railroad Company, nor in the negligent manner in which it was operated by it, but goes further back, and would consist in granting the license to said company to run over its road. The defendant had nothing to do with the machinery nor the operation of it. The plaintiff having based his action on the failure of the defendant to observe a particular duty, he must state in his petition concisely the facts giving rise to such duty or liability. Field v. Railroad, 76 Mo. 614-16; Moke's Van Sanfoord's Plead. (3 Ed.) 219; Buffalo v. Holliway, 7 N.Y. 493; Lease v. White, 15 Iowa 187; Nickerson v. Hydraulic Co., 46 Conn. 24. (2) The court erred in permitting the plaintiff to read that part of witness Broderick's deposition, in which he testified that he had seen the engine that usually ran between Bigelow and Napier throw fire before the date of the fire in proof. Such proof might be true, and yet it is no evidence that the engine, that was shown on the trial to have passed over the road the day of the fire, was the engine testified of by the witness, and is therefore no evidence that the engine in proof was not in good order and repair on the day of the fire, or that it was carelessly managed, etc. Coale v. Railroad, 60 Mo. 227-32; Kenny v. Railroad, 70 Mo. 244; Patton v. Railroad, 87 Mo. 117-22; Gibbons v. Railroad, 58 Wis. 335.

Ramey & Brown with L. R. Knowles, for respondent.

(1) Upon the count in the petition alleging negligence in appellant in permitting fire to escape from its engine the respondent can recover upon proof that the damage resulted from fire which escaped through the negligence of the employes of the Chicago, Burlington and Quincy Railroad Company, from an engine of that company while the same was running over appellant's road, with the oral permission of the agents or officers of appellant. Singleton v Railroad, 70 Ga. 464, Railroad v. Whipple, 22 Ill. 105; Railroad v. Dunbar, 20 Ill. 623; Railroad v. Barron, 5 Wall. 90; Railroad v. Brown, 17 Wall. 445; Railroad v. Winans, 17 How. 31; Railroad v. Campbell, 86 Ill. 443; Freeman v. Railroad, 7 Am. & Eng. R. R. Cases, 410, and elaborate note to last-named case,...