Motley v. Wabash R. Co.

• Decision Date: 20 November 1950
• Docket Number: No. 21471,21471
• Citation: 234 S.W.2d 321
• Parties: MOTLEY et al. v. WABASH R. CO.
• Court: Missouri Court of Appeals

Page 321

234 S.W.2d 321

MOTLEY et al. v. WABASH R. CO.

No. 21471.

Kansas City Court of Appeals, Missouri.

Nov. 20, 1950.

William M. Stringer, Moberly, for appellants.

Hunter, Chamier & Motley, Moberly, for respondent.

BROADDUS, Judge.

This is an action for damages for property loss by fire, alleged to have been caused by sparks from a locomotive of the defendant railroad company. The trial resulted in a verdict for plaintiffs. Defendant then filed its motion for judgment in accordance with its motion for directed verdict, which motion was sustained and judgment entered for defendant. Thereupon plaintiffs took an appeal. The sole ground of defendant's motions for directed verdict and for judgment was that plaintiffs' circumstantial evidence was insufficient to permit a jury to find that the fire was caused by defendant's locomotive.

Plaintiff, Mrs. Motley, is its owner of a farm consisting of about 330 acres, located west of Huntsville in Randolph County Missouri. Plaintiff, Jamison, is her brother and tenant. Defendant's railroad runs generally east and west through the Motley farm. The track is on an up-grade toward the east and passes through a cut on the farm. On April 19, 1948, a train drawn by a coal burning locomotive, passed over defendant's tracks going east. From ten to fifteen minutes afterwards plaintiff Motley and her daughter saw smoke north of the railroad tracks and in the northwest corner of the Motley farm. Both were at the farm house which is located about a quarter of a mile south of the railroad tracks. They saw no sparks coming from the stack of the engine which they saw pass the house ten no fifteen minutes before the fire was discovered.

Plaintiff, Jamison, was not at home at the time, but he arrived there before the fire stopped burning. He stated that the smoke was 'black, just boiling.' He went immediately to the scene of the fire. It had burned four or five feet inside the railroad right-of-way and north and west to a branch. The burned area covered about 4 1/2 acres upon which, prior to the fire, there had been standing hay, consisting of a mixture of lespedeza, timothy, red top and blue grass.

A neighbor of plaintiffs', Dave Baumann, testified that in November, 1947, he had hunted over the area involved for birds and the grass was so heavy his dog had trouble flushing the birds.

On the morning after the fire, Mr. Stein, defendant's section foreman, noticed the burned area. He had passed it daily before the fire. Before the fire took place it was covered with 'dead grass and weeds and wild roses.' Stein also testified that the track toward the east is up-grade, the percentage of which he did not know, but that with a load the pull would be heavy for a freight train. He further testified that he had never seen sparks emitted from the stack of a locomotive in that area.

This action was filed on May 12, 1948. On May 22, 1948, defendant paid three persons $5.00 each to make an inspection of the area where the fire occurred. Other inspections made by one of these witnesses were not shown to have been on plaintiffs' farm or to have been in an area where the conditions were the same as, or similar to, the area in which this fire occurred. This witness testified that he did not know the cause of any of the fires.

The sole question presented in this appeal is whether plaintiffs' proof was sufficient to permit a jury to find that defendant, in fact, set the fire which occurred on plaintiffs' property. The cases agree that the plaintiff must show circumstantial evidence, where no eyewitnesses were present, sufficiently strong to make sparks from an engine the probable origin of the fire and reasonably eliminate the probability of any other origin. Moreover, the circumstantial evidence must be sufficient to induce in the minds of reasonable men the conclusion that the fire did so originate. It is not sufficient that it might have so originated. Riggins v. Mo. Pac. R. Co., 208 Mo.App. 26, 233 S.W. 67; Clark v. St. Louis S. F. Ry. Co., Mo.App., 4 S.W.2d 843.

In the many reported cases on this question, invariably there are the same or similar items of proof, or circumstances, which are relied upon by the plaintiff to make a submissible case on the question of the origin of the fire. Without exception, various of these circumstances must be shown to entitle the plaintiff, under the law, to a verdict. Some of these circumstances, which the courts consider, follow.

The direction in which the wind was blowing. This circumstance is obviously to show that a spark could have been carried from the stack of the engine to the point where the fire occurred. There is no evidence in this record as to which direction the wind was blowing or whether it was blowing at all.

The condition of the weather. This circumstance is helpful in showing that a small spark could have started a fire under the conditions existing. The record here is silent on that point.

Whether sparks were seen coming from the engine on this particular occasion, or on any occasion from any engine in that vicinity. Plaintiff Motley and her daughter, the only persons who saw the engine both testified that no sparks were seen coming from the stack of the engine which they saw ten to fifteen minutes before the fire. There was no evidence that sparks had ever been seen coming from any engine in that vicinity.

Whether the engine in question was laboring, whether the train was loaded, and the grade, if any, of the track at that point. There is evidence that the grade in that vicinity was up from west to east. There is no evidence that the engine was laboring, that the train was loaded and pulling hard, that the grade is sufficient to cause an engine to pull hard. The only evidence is that...