Price v. St. Louis, I. M. & S. Ry. Co.

• Decision Date: 14 November 1914
• Docket Number: No. 1317.,1317.
• Citation: 170 S.W. 925,185 Mo. App. 432
• Parties: PRICE v. ST. LOUIS, I. M. & S. RY. CO.
• Court: Missouri Court of Appeals

170 S.W. 925

185 Mo. A. 432

PRICE v. ST. LOUIS, I. M. & S. RY. CO.

No. 1317.

Springfield Court of Appeals. Missouri.

November 14, 1914.

Rehearing Denied November 27, 1914.

1. TRIAL (§ 192) — INSTRUCTIONS — ASSUMPTION OF FACTS — UNCONTROVERTED FACTS.

In an action against a railroad company for the burning of plaintiff's mill, where plaintiff's witnesses testified to the burning of the mill and to plaintiff's ownership thereof, and thereafter defendant's witnesses were asked as to the circumstances of the burning of plaintiff's mill, instructions which assume that plaintiff owned the mill, and that it was burned, are not erroneous, since it is not error to assume as true a fact about which there is no conflict in the evidence, or which, having once been proved, the parties thereafter treat as true.

2. DAMAGES (§ 64) — RAILROADS (§ 461) — LIABILITY FOR FIRES — DEFENSES.

It is no defense, to a recovery by the owner of a mill which was destroyed by fire started by sparks from a railroad locomotive, that the plaintiff left the windows of his mill open, thereby rendering the communication of fire more easy, or that he had collected insurance upon the mill.

3. TRIAL (§ 251) — INSTRUCTIONS — ISSUES NOT MADE BY PLEADINGS.

In an action for the destruction of plaintiff's mill by fire started by sparks from a locomotive, where plaintiff showed that the windows of the mill toward the track were open, and that there was inflammable material just inside, and defendant, by its cross-examination, sought to imply that the fire was caused by plaintiff's own fault, although such fault was not pleaded as a defense, and where defendant had pleaded that plaintiff had received payment of an insurance policy on its mill, to show that the insurance company was a necessary party to the action, instructions that neither of those facts would constitute a defense are proper as declaring the effect of the evidence, although they presented issues not raised by the pleadings.

4. TRIAL (§ 186) — INSTRUCTIONS — COMMENT ON EVIDENCE.

Nor were such instructions an improper comment on the evidence.

Appeal from Circuit Court, Jasper County; D. E. Blair, Judge.

Action by John J. Price against the St. Louis, Iron Mountain & Southern Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

J. F. Green, of St. Louis, and A. E. Spencer, of Joplin, for appellant. I. V. McPherson and J. A. Potter, both of Aurora, and Fyke & Snider, of Kansas City, for respondent.

STURGIS, J.

The plaintiff recovered judgment in this case for $5,200, because of the alleged destruction of his mill by fire communicated to it by one of defendant's locomotive engines. The only error complained of by appellant is in the instructions given for plaintiff, and no extended statement of the facts is necessary. The mill was burned at night. It was situated 54 feet south of the center of defendant's track in the village of Hoberg, Mo. The fire was discovered shortly after a freight train of about 30 cars had passed going east. The mill in question was situated near the top of a grade in going that direction. This grade was such that engines had to use much steam in pulling freight trains up the same, and this was shown to have frequently caused burning cinders to be thrown out by engines for a distance equal to that of the mill from the track. The weather was very dry at the time, causing fires to be easily started. The engineer operating the engine on the freight train mentioned says that he noticed this mill as he passed it shortly before the fire, and that he discovered no fire about it at that time. The building was a two-story frame structure, and the fire when discovered was in the upper story.

The point contested at the trial was as to whether the fire destroying the mill was communicated thereto by this passing locomotive or originated in some other manner unknown. No other origin of the fire is suggested. The plaintiff's evidence tends to show that the wind at the time the fire started was blowing in a southerly direction, and would therefore carry the burning cinders thrown out by the engine towards this mill. The defendant's evidence shows the wind was blowing towards the north and would carry such cinders away from the mill. Most of the evidence of both parties was directed to this point. The appellant states its position thus:

"There was a sharp conflict in the evidence. If plaintiff's witnesses were believed, the most that can be said is that plaintiff made a prima facie case. If the witnesses for defendant were believed, the fire could not have been communicated to the mill by an engine on defendant's railroad. This was therefore peculiarly a case where the court in giving instructions to the jury should not have assumed the existence of any controverted fact, and should not have commented upon the evidence or directed the attention of the jury to issues not presented by the pleadings."

Defendant is to be commended in conceding that plaintiff made a prima facie case under the rulings of our courts. Erhart v. Railroad, 136 Mo. App. 617, 118 S. W. 657; Campbell v. Railroad, 121 Mo. 340, 350, 25 S. W. 936, 25 L. R. A. 175, 42 Am. St. Rep. 530.

All the instructions asked by defendant were given, and, as indicating its views of the issues presented, told the jury that:

"Before you can find for the plaintiff, you must find and believe from the evidence introduced before you that the mill burned, and that the fire was communicated by a locomotive engine in use upon the railroad of defendant, and unless you so find your verdict must be for the defendant" — and that the burden was on the plaintiff to prove ...