Miller v. St. Louis, I. M. & S. R. Co.

• Decision Date: 20 December 1886
• Citation: 2 S.W. 439,90 Mo. 389
• Court: Missouri Supreme Court
• Parties: MILLER v. ST. LOUIS, I. M. & S. R. Co.

2 S.W. 439

90 Mo. 389

MILLER v. ST. LOUIS, I. M. & S. R. Co.

Supreme Court of Missouri.

December 20, 1886.

RAILROAD COMPANIES — INJURIES TO FENCE BY FIRE — RESULTING DAMAGE TO CROPS.

A railroad company which is liable for damages caused by the burning of plaintiff's fence round a cornfield is also liable for the destruction by cattle of the corn formerly inclosed by the fence, and left exposed to their depredations by its destruction.

Appeal from circuit court, Stoddard county.

Action for damages. Judgment for plaintiff. Defendant appeals.

D. H. McIntyre, for respondent, Miller. T. J. Portis, for appellant, St. Louis, I. M. & S. R. Co.

SHERWOOD, J.

The petition in this cause, so far as necessary to copy it, is as follows: "Plaintiff further states that the defendant was the owner, and had possession and control, of the premises adjacent to the premises of this plaintiff, and used and occupied the same in running and operating its said road. Plaintiff further states that defendant criminally and negligently permitted and allowed the premises, so owned and occupied by it, to and adjacent to plaintiff's, to grow up in grass, and permitted the same to dry and become inflammable matter. Plaintiff further states that on said first day of September, 1881, at the county of Stoddard and state of Missouri, and at the time defendant was engaged in running and operating said railroad, the defendant did, by its agents, servants, and employes, while running a railroad engine of defendant's, by means of fire as aforesaid, between the town of Poplar Bluff, and to and beyond the town of Dudley, in Stoddard county, Missouri, set fire to the fence of plaintiff, and the inflammable material permitted by defendant to grow and become inflammable upon the premises of defendant, at a place near the said town of Dudley, and at a point where the premises of said defendant joined to those of this plaintiff, by sparks of fire escaping from the engine of defendant run and operated by its agents and servants, and by reason of the neglect and failure of defendant to equip said engine with mechanical contrivances employed and constructed to prevent the escape of fire. Plaintiff further states that, by reason of the fire so kindled and by reason of the neglect of defendant to remove the said inflammable matter at the point or place aforesaid, and by reason that the defendant failed to prevent the scattering of fire from its engine by the use of mechanical contrivances to prevent the escape of fire, his fencing, of the value of one hundred dollars, that inclosed the above-described premises, were set on fire by the defendant and burned up, and thereby leaving his crop exposed and unprotected from destruction by cattle and hogs and other stock. Plaintiff further states that there was, at the time, standing and growing upon said premises, forty acres of corn, of the value of three hundred and fifty dollars, all of which corn and property of plaintiff was, by reason of the destruction of said fencing, caused by the neglect of defendant aforesaid, injured and destroyed by cattle, hogs, and other stock. Wherefore plaintiff prays judgment against said defendant in the sum of four hundred and fifty dollars, and for his costs of suit."

It will be observed that the petition, in substance, charges that the damage done to plaintiff's property resulted from the escape of fire, which escaped by reason of the neglect of the defendant to provide suitable mechanical contrivances to prevent the scattering of fire by its engine, and by reason of the neglect of the defendant to remove the dry grass on its right of way. Under the rulings of this court, a prima facie case of negligence on the part of a railway company to provide suitable mechanical contrivances to prevent the escape of fire is made out when it is shown...