Missouri Egg & Poultry Co. v. Missouri Pac. R. Co.

• Decision Date: 20 November 1923
• Docket Number: No. 23279.,23279.
• Parties: MISSOURI EGG & POULTRY CO. v. MISSOURI PAC. R. CO.
• Court: Missouri Supreme Court

257 S.W. 477

MISSOURI EGG & POULTRY CO. v. MISSOURI PAC. R. CO.

No. 23279.

Supreme Court of Missouri, in Banc.

November 20, 1923.

Motion for Rehearing Overruled January 4, 1924.

Appeal from Circuit Court, Pettis County; R. B. Shain, Judge.

Action by the Missouri Egg & Poultry Company against the Missouri Pacific Railroad Company. From an order granting a new trial after a verdict for defendant, defendant appeals. Reversed and case remanded, with directions to set aside the order and enter a judgment for defendant.

James F. Green, of St. Louis, for appellant.

Bates, Hicks & Folonie, of Chicago, Ill., and Montgomery & Rucker, of Sedalia, for respondent.

Statement.

WOODSON, C. J.

The plaintiff brought this suit in the circuit court of Pettis county against the defendant to recover $54,879.64 damages sustained by it caused by burning the property of the former located at Holden, Mo.

Counsel for respondent state the facts of their side of the case as follows:

Between the hours of 1 and 2 a. m. on the 13th day of August, 1920, the building and contents of a poultry station owned by plaintiff was destroyed by fire. The total value was $54,879.64. There was no real dispute concerning the value of the property destroyed. The Missouri Pacific tracks approaching the town of Holden from the west run parallel with and approximately 50 feet from the lot on which plaintiff's poultry station was located, prior to the fire. The building was approximately 255 feet in length, 53 feet wide at the east end, and 25 feet wide at the west end. Part of its length the building was one story and a half in height, and a part one story. Over the portion which was one story high, there was constructed a ventilator, the sides of which during the summer months was open except for some chicken wire. The building was immediately south of the railroad right of way. On the night in question employs of the plaintiff company were engaged in unloading some supplies and concluded their labors about 9:30. The building was electrically wired with a switch in the office which cut off all of the electrical current throughout the entire building. There was no fire in the building, and no one had been smoking that evening. The employés left the building at about the hour above indicated, locked all the outside entrances, and turned off the electrical current at the main switch In the office. Just east of the poultry house and immediately across the public road therefrom, which was about 40 feet in width, was located the Holden Ice, Light & Fuel Company plant. The night engineer in charge of said light plant was in and out of the plant and in a position to observe the building owned by plaintiff, and testified that there was no fire or evidence of fire about the poultry plant until a few minutes after the passing of defendant's east-bound train No. 10. It also appears that there was a stiff breeze blowing from the north on the night in question, and defendant's witness, May, testified that he passed along the north side of the building shortly before the arrival of train No. 10, and there was no sign of any fire about the premises at that time. In the loft and immediately under the open ventilator plaintiff had placed boards at intervals across the runway below and stored thereon a large quantity of excelsior, some in pads or bundles and some loose. Within five or ten minutes after defendant's train passed the poultry house, witness McGee, night engineer for the light company, noticed a fire in the poultry plant, and upon inspection found a considerable fire on the floor of the runway immediately under the excelsior pads. It appears that the floor of this runway was free of trash or débris at the time the plant was closed by plaintiff's employés at 9:30 p. m. Witness McGee described the fire as being something burning on the floor. The fire was promptly reported to the fire chief, and, though on the scene within 10 or 15 minutes after the same was discovered, the flames were beyond control and the entire building with the contents was destroyed.

The Missouri Pacific tracks run into Holden from the west on a heavy upgrade approximately three-fourths of a mile in length. Plaintiff's witnesses all testified that the defendant's trains coming into Holden from the west used a full head of steam in making the grade and that on a number of occasions freight engines have been unable to pull the grade with a full train, making it necessary to break the train and take the same up the grade in sections. There was considerable testimony concerning the throwing of sparks and brands of fire by defendant's trains as the same drew into Holden. Two witnesses told of having been severely burned by sparks from defendant's locomotives while on the roof of plaintiff's building. Engineers testifying for defendant admitted that it was not uncommon for locomotive engines to throw sparks. But defendant undertook to negative the possibility of the said engine in question having thrown sparks by evidence: First, that it was the uniform custom of defendant's engineers to coast up the long grade into Holden without the use of any steam, this being possible by reason of a downgrade immediately west of the upgrade coming into Holden and that no locomotive could throw sparks with the steam shut off; and, second, that defendant's engines were equipped with a type of spark arrester which precluded the possibility of the engine throwing sparks even though steam were used. Defendant brought into court the spark arrester with which it was alleged the engine was equipped on the night in question. A spark arrester is composed of heavy wire netting held together by angle irons and bolts with which the same is fastened into the front of the engine. There are, in addition to the wire netting, a number of plates referred to as baffle plates and a petticoat on which the brands of fire are thrown by the force of the draft and broken into small particles before reaching the wire netting. The only expert witness produced by defendant who had no railroad connections was one Murphy, a fire prevention and protection engineer, who was in the employ of insurance underwriters. All witnesses' testified that if the wire meshing which was part of the spark arrester was defective, or had any openings in it larger than the ones provided at the time of its manufacture, the same was liable to permit brands of fire to escape. On cross-examination the witness Murphy testified that the spark arrester submitted for his examination, and which defendant alleged was in the engine in question on the night of the fire, was not in proper condition and that he would not have passed it as in good shape had the same been submitted to him for inspection. All of the evidence offered by plaintiff, except as to the value of the building and contents, was circumstantial. At the conclusion of the testimony the court gave, at defendant's request, the following instructions Nos. I, II, III, IV. Before these instructions were given, at the end of the plaintiff's testimony, the defendant asked an instruction in the nature of a demurrer to the evidence, which the court refused, and the defendant duly excepted.

Instructions.

No. I. "The court instructs the jury that the burden is upon the plaintiff in this case to show by a preponderance of all the evidence in the case that live coals from one of defendant's engines set fire to plaintiff's property, and you cannot find that fact by guess, supposition, or surmise, nor merely because an engine or engines belonging to the defendant passed by plaintiff's property shortly before the fire; but, before you can find for the plaintiff in any sum, you must believe that the greater weight of the testimony shows that defendant's engine or engines did in fact set fire to plaintiff's property."

No. II. "The court instructs the jury that it is not enough that you find and believe from the evidence that it is more probable that fire was communicated to the frame building mentioned in the testimony from an engine being operated by defendant than from some other source, but before you can find for plaintiff you must find as a fact that the fire which destroyed the building heretofore referred to was communicated to said building by an engine being operated by this defendant, and, unless you so find, your verdict should be for the defendant."

No. III. "The court instructs the jury that the defendant is not required in this case to show that the fire originated from some other cause than from sparks thrown out by one of its engines, but the burden is on the plaintiff to show by a preponderance of the evidence that its property was in fact set on fire by live sparks thrown from one of defendant's engines; and if you are not able to determine from the evidence what the true cause of the fire was, or how it originated or what produced it, then you should find for the defendant."

No. IV. "The court instructs the jury that by `a preponderance of the evidence' as used in the instructions is not meant the greater number of witnesses testifying on one side or the other, but the greater weight of the credible testimony."

The jury returned a verdict for defendant, and plaintiff filed timely motion for new trial, which was sustained. Defendant appealed from the order granting the new" trial.

Counsel for defendant introduced much evidence tending to contradict the evidence introduced by the plaintiff, upon all points, except as to the value of the property destroyed by the fire. Since however the respondent's evidence made a prima facie case for the jury, and that body having found the issues for the appellant, it seems to me to be unnecessary to protract the length of this opinion by setting out the evidence introduced by the appellant, especially since the ruling of the trial court turns alone upon questions of law.

At the close of all the testimony, defendant again requested the court to give...