Poeppers v. Missouri, Kansas & Texas Ry. Co.

• Citation: 67 Mo. 715
• Parties: POEPPERS v. MISSOURI, KANSAS & TEXAS RAILWAY COMPANY, Appellant.
• Decision Date: 30 April 1878
• Court: United States State Supreme Court of Missouri

67 Mo. 715

POEPPERS

v.MISSOURI, KANSAS & TEXAS RAILWAY COMPANY, Appellant.

Supreme Court of Missouri.

April Term, 1878.

Appeal from Pettis Circuit Court.--HON. WM. T. WOOD, Judge.

John Montgomery, Jr., for appellant, cited Sedg. on Dam., (6 Ed.) side p. 82, note 2; Boland v. Missouri River R. R. Co., 36 Mo. 491; Barton v. St. Louis & Iron Mountain R. R. Co., 52 Mo. 259; Costigan v. M. & H. R. R. Co., 2 Den. 609; Ryan v. N. Y. Cent. R. R. Co., 35 N. Y. 216; Clemens v. H. & St. Jo. R. R. Co., 53 Mo. 370; Fent v. T., P. & W. R. R. Co., 59 Ill. 349; Kellogg v. Milwaukee, &c., Ry. Co., 94 U. S. 469; s. c., 1 Cent. Law Jour. 278; Toledo R. R., &c., v. Muthersbaugh, 71 Ill. 572; s. c., 7 Chic. Leg. News 131; Hooksett v. Concord R. R. Co., 38 N. H. 246; Penn. R. R. Co. v. Kerr,62 Penn. St. 353; Webb v. Rome, &c., R. R. Co., 49 N. Y. 425; Kellogg v. Chicago, &c., R. R. Co., 26 Wis. 223; Morrison v. Davis, 8 Harris 171; McDonald v. Snelling, 14 Allen 294; Calkins v. Barger, 44 Barb. 424; Fahn v. Reichart, 8 Wis. 255; Hoey v. Felton, 11 C. B. (N. S.) 142; 103 E. C. L. 142; Daniels v. Potter, 19 E. C. L. 375.

Claycomb & Gray for respondent, cited R. R. Co. v. Bales, 16 Kas. 252; s. c., 15 Am. Law Reg. (N. S.) 622; Kellogg v. Chicago, &c., R. R. Co., 7 Am. Rep. 69; Webb v. Rome, &c., R. R. Co., 10 Am. Rep. 389; Flynn v. San Francisco, &c., R. R. Co., 6 Am. Rep. 595; s. c., 40 Cal. 14; Fitch v. Pacific R. R. Co., 45 Mo. 322; Fent v. Toledo, &c., Ry.Co., 6 Alb. L. J. 226; Bedford v. H. & St. Jo. R. R. Co., 46 Mo. 456; Meyers v. Chicago, &c., R. R. Co., 59 Mo. 223.

NAPTON, J.

Notwithstanding the multitude of decisions, here and elsewhere, in regard to the responsibility of railroad companies for fires escaping from their engines, the present case undoubtedly presents some novel features, which have occasioned some hesitation in applying to it principles which, after considerable conflict, seem to be now pretty well settled. The facts in this case are that some sparks from a locomotive of defendant set fire to the prairie, about 2 o'clock on the evening of the 23d day of November, 1872, near the track, and the grass being very rank and dry, and the wind being high, the fire extended about two and a half or three miles before night, and continued to burn during the night, though slowly; but in the morning the wind rose again and blew hard, as was not unusual in that country, and carried the fire some five miles further, until it reached plaintiff's farm, about 9 or 10 o'clock on the 24th, and burned over a fire-line of about sixteen feet of plowed ground and destroyed the property of the plaintiff.

At the trial plaintiff asked the court to give the following instructions in his behalf, viz.:

1st. The court instructs the jury that the defendant in this case was bound to a degree of care and diligence in proportion to the degree of damages and the probable extent of injury to the property of others in case of negligence, and if the jury believe from the evidence that, on or about the 23d day of November, 1872, the defendant, the M., K. & T. Ry. Co., through its agents and employees, while operating its engines and trains of cars over the line of road in Vernon county, Missouri, failed to exercise that degree of care and caution they ought to have done under the circumstances, in consequence of which fire escaped from the engines of the trains in their use and set on fire the dry grass and combustible matter accumulated and standing alongside of and by the railroad track, and thence, by its natural extension, communicated and burned the property of plaintiff, as alleged in the first count in his petition, then they will find for the plaintiff.

2. The court instructs the jury, on the part of the plaintiff, that if they should believe from the evidence that there was a continuous line of dry prairie grass, or other combustible matter, extending directly from the point at or near the railroad track where this fire is alleged to have started to the plaintiff's premises, and that the defendant, while running its locomotive steam engines, cars and coaches on its said line of road in Vernon county, Missouri, through its servants, agents and employees, negligently permitted the fire and sparks to escape from its engines on the said 23d day of November, 1872, and that the sparks did set fire to the dry grass along and by the side of its line of road near to the same, and that the fire so set naturally continued to spread and burn without any break, and burned over the whole line of combustible matter from the point where it started to the plaintiff's farm, so as to make but one continuous conflagration from the time it started near the railroad track until it reached the plaintiff's farm, and did burn up and destroy plaintiff's property as alleged, without any fault or negligence on his part, then they will find for the plaintiff.

3. The court instructs the jury, on the part of the plaintiff, that if they believe from the evidence that the M., K. & T. Ry. Co., on or about the 23d day of November, 1872, while running its locomotive steam engines, cars and coaches on its line of road in Vernon county, Missouri, through its servants, agents and employees, permitted the sparks and fire to escape from its engines and set fire to the grass along and by the side of its line of road, and damage ensued to the plaintiff as alleged, then the jury may infer or presume that the fire escaped through the negligence of the defendant, its servants, agents or employees. And the court instructs the jury that in such case it devolves upon the defendant to rebut the presumption of negligence by proving that it was using proper and safe locomotives and engines, and that its servants and ememployees were conducting them in a proper and safe way at the time the fire escaped, and, unless the jury believe that the defendant has thus rebutted this presumption, they will find for the plaintiff.

4. The court instructs the jury, on the part of the plaintiff, that, even though they should believe from the evidence that the defendant, on the 23d day of November, 1872, was using in the operation of its road machinery of the most improved mode of construction, and the latest and best appliances in known use, to prevent the escape of fire, and that they generally managed their said machinery and operated their said road in a safe and proper way, yet, if they should further believe from the evidence that in this instance the servants or employees of defendant were running an unreasonably long train, so that the engine was overloaded and pulled very hard, and in consequence thereof produced the escape of sparks and fire to a dangerous extent, then the jury may take into consideration this fact, with the surrounding circumstances as shown by the evidence, in deciding whether or not there was negligence on the part of defendant, its servants or employees in the running of its trains, the management and use of its said engines and machinery.

5. The court instructs the jury, on the part of the plaintiff, that, even though they should believe that the defendant had at one time provided its engines with the best appliances in known use for the prevention of the escape of fire, and did generally manage the same in a proper and safe way, yet, if they should further believe from the evidence that in this instance the defendant had suffered its engine to get into bad order, so that fire escaped therefrom as alleged, and by such escape of fire damage ensued to plaintiff, without fault on his part, then they will find for the plaintiff.

6. The court instructs the jury that, although they must, in finding a verdict in this case, be governed by the maxim that every one is liable for the natural and proximate, but not for the remote, damages occasioned by his acts, yet this maxim is not to be controlled by time and distance; and if the jury believe from the evidence that there was but one burning, one continuous conflagration, from the time the fire was set at or near the railroad track till, by its natural extension, it extended to and burned plaintiff's property, in such a manner as to constitute but one event, one continuous burning, and that the damage complained of was, under the surrounding circumstances, the natural result of the escape of the fire from the engine of the defendant, through defendant's negligence, then they will find for the plaintiff, if they shall further find that said damage was not caused by any fault of the plaintiff.

7. The court instructs the jury, on the part of the plaintiff, that if they should believe from the evidence that the plaintiff is entitled to recover on the first count in his petition, then they shall assess his damages on said count at such sum as they shall believe from the evidence that the property destroyed by the fire was reasonably worth. not to exceed the sum for which judgment is asked for in said count; and the jury may find for plaintiff on one count of the petition, and for the defendant on the other.

8. The court instructs the jury that, even though they should believe from the evidence that the defendant, on the 23d day of November, 1872, was using in its business the most approved machinery in known use, and had adopted and was using the best appliances in known practical use, for security, safety and preventing the escape of fire, and that the same were properly managed, yet, if they should further believe from the evidence that the defendant permitted the dry grass and combustible matter to accumulate by the side of and near to the railroad track, within its right of way, in such...