McFarland v. Mississippi River & B. T. Ry. Co.

• Decision Date: 09 June 1903
• Citation: 75 S.W. 152,175 Mo. 422
• Parties: McFARLAND v. MISSISSIPPI RIVER & B. T. RY. CO.
• Court: Missouri Supreme Court

75 S.W. 152

175 Mo. 422

McFARLAND v. MISSISSIPPI RIVER & B. T. RY. CO.

Supreme Court of Missouri, Division No. 2.

June 9, 1903.

RAILROADS—FIRES—DAMAGES AND PENALTY —WHO ENTITLED TO RECOVER—STATUTES— CONSTITUTIONALITY—INSTRUCTIONS.

1. Rev. St. 1889, § 2614, requires railroads to keep their rights of way clear of dry vegetation and undergrowth, so as to prevent fires, and provides that "any corporation * * * failing to comply with the provisions of this section shall incur a penalty not to exceed five hundred dollars, and be liable for all damages done by said neglect of duty." Held, that the penalty, as well as the damages, were recoverable by the person aggrieved by a failure to comply with the statute.

2. Rev. St. 1899, § 2391, provides that, "whenever a fine or penalty is or may be inflicted by any statute of this state for any offense, the same may be recovered by indictment or information notwithstanding another or different remedy for the recovery of the same may be specified in the law imposing the fine, penalty or forfeiture. Provided, that in all cases the fine, penalty or forfeiture shall go to the state, county, corporation, person or persons to whom the law imposing the same declares it shall accrue." Held, that the failure to comply with the requirements of section 2614 was not an offense, within the meaning of section 2391, and hence did not give the state a right to sue in its own name for a recovery of the penalty imposed thereby.

3. In an action against a railroad for damage by fire, the jury were instructed to find for plaintiff if they found that defendant failed to cause all dead and dry vegetation and undergrowth on its right of way to be removed, and, by its agents and servants, while operating a locomotive, "permitted sparks and fire to escape from said locomotive and set fire to the grass, stubble, and combustible matter on and in the vicinity of its said road, and which said fire escaped to the adjoining premises and * * * destroyed" plaintiff's property. Held not objectionable as not requiring a finding that the fire began on the right of way, and thence escaped to plaintiff's property.

4. The instruction was not objectionable as not requiring the jury to find that the failure of defendant to clear off the right of way was the proximate cause of plaintiff's injury, or that the fire was communicated by reason of dead and dry grass.

5. Rev. St. 1889, § 2614, does not violate the fourteenth amendment to the Constitution of the United States, providing that no state shall deprive any person of property without due process of law, or the clause of the Constitution of Missouri providing that private property shall not be taken for private use.

Appeal from Circuit Court, St. Francois County; Jas. D. Fox, Judge.

Action by J. L. McFarland against the Mississippi River & Bonne Terre Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Huff & Sleeth, for appellant. Pipkin & Swink, for respondent.

BURGESS, J.

The petition in this case is in two counts. The first count is as follows: "Plaintiff states that W. F. Mitchell is, and was at all the times hereinafter mentioned, the owner of certain premises in the county of St. Francois, being the premises on which the said W. F. Mitchell then and now resides; that plaintiff had located on said premises of W. F. Mitchell, with his knowledge and consent, twenty-six cords of wood; that on the 6th day of September, 1899, defendant was and is a corporation owning and operating a railroad in and through the county of St. Francois, state of Missouri; that the railroad of defendant runs through the said premises of W. F. Mitchell; that on the 6th day of September, 1899, a certain locomotive was in use on said railroad, and was then and there attached to and drawing a train of cars at the point where said road runs through the premises of the said W. F. Mitchell; that said locomotive was so defectively and improperly built and constructed, and was so carelessly, negligently, and unskillfully managed by the agents, servants, and employés of defendant in charge thereof, that sparks of fire escaped from said locomotive and set fire to the grass, stubble, and combustible matter on and in the vicinity of its said road, and which said fire escaped to the adjoining premises of the said W. F. Mitchell, and burned, consumed, and destroyed a large amount of cord wood located thereon, and belonging to the plaintiff, to wit, twenty-six cords of wood, of the value of fifty-two ($52) dollars, to the damage of plaintiff of fifty-two ($52) dollars, for which plaintiff asks judgment." The second count is an action under section 2614, Rev. St 1889, for penalty for the failure of defendant to comply with said statute, in this: "Said company failed between the 1st and the 15th days of August, 1899, and between the 5th and 25th days of October, 1899, to cause all dead or dry vegetation and undergrowth upon the right of way occupied by said railroad company about one and one-half miles north of the `Junction,' a station on said road, and at a point adjacent to the farm and property of the said W. F. Mitchell, to be cleaned off, or burned up or removed; that, by reason of the failure of the said defendant company to comply with the statute aforesaid, said defendant, by its agents and servants, on or about the 6th day of September, 1899, while operating a locomotive engine on its said road, where it runs through the said W. F. Mitchell's farm aforesaid, which said engine or locomotive was so defectively and improperly built and constructed, and was so carelessly, negligently, and unskillfully managed by the agents, servants, and employés of defendant in charge thereof, that sparks of fire escaped from said locomotive, and set fire to the grass, stubble, and combustible matter on and in the vicinity of its said road, and which said fire escaped to the adjoining premises of the said W. F. Mitchell, and burned, consumed, and destroyed a large amount of cord wood thereon, and belonging to the plaintiff, to his damage. That said plaintiff, by virtue of section 2614, Rev. St. Mo. 1889, is entitled to the penalty therein provided, to wit, five hundred dollars, and therefore asks judgment for the sum of five hundred dollars and costs." The answer is first a general denial, and then proceeds as follows: "And for other separate and distinct defense to plaintiff's pretended cause of action, defendant, still denying that plaintiff suffered any damage as alleged in his petition, says that on the date alleged in the petition there was a fire near defendant's right of way that burned and destroyed certain property which it is alleged belonged to plaintiff, and that the same fire at the same day and time burned certain other property, belonging to other parties, and that said other parties are also demanding against this defendant judgment for said damages so alleged to have been suffered by them, and also, under the provisions of section 1110, Rev. St. 1899, are each demanding a penalty not exceeding $500 because of such damage. Wherefore defendant says that there is a nonjoinder of parties plaintiff herein, and that plaintiff can recover nothing herein, by way of penalties, without joining in the same action all who suffered from said fire. Defendant further says that the said statute (section 1110, Rev. St.) is unconstitutional, in that the same attempts to take the property of the defendant for private use without just compensation, and imposes upon defendant an excessive penalty, and is an unjust discrimination against this defendant." The trial resulted in a verdict and...