Riley v. St. Louis & S. F. R. Co.

• Decision Date: 02 April 1907
• Citation: 101 S.W. 156,124 Mo. App. 278
• Court: Missouri Court of Appeals
• Parties: RILEY v. ST. LOUIS & S. F. R. CO. et al.

101 S.W. 156

124 Mo. A. 278

RILEY v. ST. LOUIS & S. F. R. CO. et al.

St. Louis Court of Appeals. Missouri.

April 2, 1907.

1. RAILROADS — NEGLIGENCE — INJURIES CAUSED BY FIRES — EVIDENCE.

Where, in an action against a railroad for destroying plaintiff's fences and crops by a fire, the complaint alleged that "the servant's agents and employés did negligently set fire to brush and grass on the right of way," etc., that "the said fire did extend," etc., "to the premises of plaintiff," etc., it was error to admit testimony that the fire was communicated by sparks from defendant's engine.

2. PLEADING — AMENDMENTS — NEW CAUSE OF ACTION.

Where, in an action against a railroad for destroying plaintiff's fences and crops by a fire, the petition alleged that the servants, agents and employés did negligently set fire to brush and grass on the right of way, etc., and that the fire extended to plaintiff's premises, etc., and the only evidence tending to show defendant's responsibility for the fire was that sparks escaped from one of its engines and set fire to brush along the right of way about the time the fire in question occurred, it was error at the close of the evidence to permit plaintiff to amend his petition by changing the averment so as to read: "The servants, agents, and employés of defendant did set fire to brush," etc., "on the right of way," etc., "from fire from locomotives," and that "said fire did extend," etc.— and to instruct for a recovery if the loss of plaintiff's fences was caused by fire communicated directly or indirectly from defendant's engines.

Appeal from Circuit Court, New Madrid County; Henry C. Riley, Judge.

Action by Bettie Riley against the St. Louis & San Francisco Railroad Company and another. Judgment for plaintiff, and defendants appeal. Reversed.

Moses Whybark, for appellants.

GOODE, J.

This case was instituted to recover damages entailed by the destruction of plaintiff's fences and crops by a fire. The evidence proved no damage except to fences, and the jury were not authorized to return a verdict for anything else. The allegation of negligence is that the "servants, agents, and employés did negligently set fire to brush and grass on the right of way of defendants' said railroad; that the said fire did extend from the said right of way to the premises of plaintiff, and did destroy the fences and the crops thereon," etc. It will be observed the allegation does not say whose servants negligently set the fire, nor is...