Riggins v. Missouri Pac. R. Co.
| Decision Date | 18 June 1921 |
| Docket Number | No. 2874.,2874. |
| Parties | RIGGINS et al. v. MISSOURI PAC. R. CO. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Ripley County; Almon Ing, Judge.
Action by E. W. Riggins and others against the Missouri Pacific Railroad Company. Judgment for plaintiffs, and defendant appeals. Reversed.
Jas. F. Green, of St. Louis, and 3. C. Sheppard, of Poplar Bluff, for appellant.
Chas. B. Butler, of Doniphan, for respondents.
Plaintiffs, husband and wife, sued to recover for the loss of their house and contents, alleged to have been set on fire by sparks from a locomotive engine of defendant. The cause was tried to a jury, and plaintiffs recovered. Unsuccessful in motion for new trial, defendant appealed.
The evidence is wholly circumstantial. Plaintiff's house, a four-room frame, stood on the east side and about 260 feet from defendant's track. There was a low or valley-like place between the track and the house. The house stood on a hillside, but the railroad track was somewhat higher than the foundation of the house. The smokestack of defendant's locomotive on the track directly opposite the house would, according, to plaintiff's evidence, be a few feet higher than the top of the house. The house on the side next to the track was covered with shingles, and these were somewhat old and dry. The other side of the roof was rubberoid. There were two flues to the house, one the kitchen stove flue which was on the east side of the house, another flue was on the west side next to the track. The house burned between 5 and 6 o'clock in the afternoon of April 21, 1920. There had been no fire that day in the stove in the room next to the track. A fire had been in the cookstove at the noon hour—a big fire, Mrs. Higgins testified—but had gone out. The wind was blowing rather hard from the west to the east, or from the track towards the house. No one was in or about the house at the time the fire started, except two small children, who were in bed. Mrs. Riggins was in a meadow north of the house, some 400 yards away when the train passed. Immediately after the train passed she noticed that the house was on, fire at the end toward the railroad track, and opposite from the kitchen flue. She ran to the house and got out the children. She stated the outside of the house, presumably, roof is meant, burned first.
Defendant's evidence shows that on the day plaintiff's house was burned that its train passed over the track west of plaintiff's house just prior to the fire on the way from Neelyville to Doniphan; that for some mile or more before reaching plaintiff's house and on beyond the house toward Doniphan its track is down grade, and that when its train passed down this grade it was coasting, that the steam was not working, and that no sparks were escaping. That the engine was equipped with a spark arrester in good condition, and that, with the engine so equipped, and on the down grade, and not working the steam, no sparks could have been emitted or escaped. Defendant's evidence tended to show also that the wind was from the south or southwest. The trees and vegetation to the north of the house were scorched and burned more than anywhere else about the burned house. A small wooden smokehouse with shingle roof stood about 40 feet east of the house and was not burned. Defendant's brakeman was in the baggage car, and as the train passed plaintiffs' place he stepped to the door, and says that he saw smoke coming out from the house as the train passed. He saw Mrs. Higgins in the meadow, waved at her, and threw out a paper for her. The fireman testified that as they passed he saw smoke coming from the house. All the train crew testified that the train was coasting as it passed the house, and was not working the steam. Plaintiffs, over defendant's objection and exception, showed that the next morning as the train went out from Doniphan that it set fire to some grass on plaintiffs' premises, north of the burned house, but about the same distance from the track. Defendant meets this evidence by saying that this was on the up grade, and when the engine was working the steam.
The defendant assigns as error the refusal of the court to direct a verdict in its favor, and in admitting certain evidence over its objection.
[] In considering the demurrer we consider as true every material fact which plaintiffs' evidence tends to establish and every reasonable inference deducible therefrom. Plaintiffs established, therefore, that their house was burned; that defendant's train passed just before the house was discovered to be on fire by Mrs. Riggins; that the fire was first discovered "at the corner of the front part of the house," next to the railroad, and away from the flue; that the wind was strong and was blowing from the railroad track toward the house. It was not shown that the train was emitting any sparks as it passed the house, or near the house, or that any engine at any time had emitted sparks passing down this grade in the neighborhood of this house, or anywhere else on this grade, when the train was coasting, and not working the steam. It was shown that sometimes the fire box was shaken down when coasting down this grade, and that when this was done live coals and cinders fell a distance of a few inches to the space between the tier. But there is no showing that such occurred on the occasion when plaintiffs' house was burned, or that if it had occurred that it was within the realm of reasonable probability or possibility that one of the cinders so dropped from the fire box could have been picked up and carried by the wind to plaintiffs' house.
[] Plaintiffs were not required to establish by direct evidence that their house was set on fire from sparks or cinders from defendant's locomotive engine, but they were required to establish facts from which a reasonable inference is deducible that the house was so set on fire. Unless such facts were established the demurrer should have been sustained. Gibbs v. Railroad, 104 Mo. App. 276, 78 S. W. 835. The probative force of the evidence must be strong enough to induce in the minds of reasonable men, the jury, that the fire in fact originated from one of defendant's locomotive engines. It is not sufficient that it might have so originated. Big River Lead Co. v. Railroad, 123 Mo. App. 394, 101 S. W. 636; Taylor v. Lusk, 194 Mo. App. 133, loc. cit. 139, 187 S. W. 87; Railroad v. Richardson, 91 U. S. 470, 23 L. Ed. 356.
In Gibbs v. Railroad, supra, the destroyed house, a hotel, was in the town of Leasburg, and stood about 50 feet from the railroad. The house faced the track, and was a story and a half high with a porch in front, which porch extended around the corner a short distance. A signboard was fastened to the roof of the porch, but there was evidence that this sign had blown over, and was lying on the porch roof. It was claimed that the fire I started from a cinder from a locomotive engine catching against the sign. The fire was discovered about 1 o'clock a. m. and at that time was burning on the northeast corner...
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