Shartzer v. Atchison, T. & S. F. Ry. Co.

• Decision Date: 30 April 1923
• Docket Number: No. 14660.,14660.
• Citation: 250 S.W. 950
• Court: Missouri Court of Appeals
• Parties: SHARTZER v. ATCHISON, T. & S. F. RY. CO.

250 S.W. 950

SHARTZER v. ATCHISON, T. & S. F. RY. CO.

No. 14660.

Kansas City Court of Appeals. Missouri.

April 30, 1923.

Appeal from Circuit Court, Clinton County; A. M. Tibbels, Judge.

"Not to be officially published."

Action by A. J. Shartzer against the Atchison, Topeka & Santa Fé Railway Company. Verdict for defendant, and from an order sustaining plaintiff's motion for new trial, defendant appeals. Affirmed.

Cyrus Crane, Geo. J. Mersereau and John H. Lathrop, all of Kansas City, and F. B. Ellis, of Plattsburg, for appellant.

John A. Cross, of Lathrop, R. H. Musser, of Plattsburg, and Pross T. Cross, of Lathrop, for respondent.

ARNOLD, J.

This is an action for damages for the destruction by fire of plaintiff's two-story farmhouse, alleged to have been caused by sparks from defendant's locomotive.

Plaintiff's house was located near the tracks of the defendant company, about a mile and a half east of Lathrop, in Clinton county, and had been unoccupied for a period of six or eight months immediately prior to the date of the fire that caused its destruction. It stood back from the railroad track a distance variously estimated from 75 to 160 feet, the evidence of the contestants being contradictory on this point. The house was built about 1870-72, and had stood there all that time. Shortly before the fire was discovered one of defendant's freight trains, pulled by one engine, passed the farmhouse, going east upon a slight grade. At a public road crossing about half a mile west of the house the engine was seen to throw out sparks.

Defendant's evidence tends to show that the engine used on this particular occasion was equipped with spark arresters, and was carefully inspected daily, and that the inspection records, both before and after the fire, showed the engine to be without defect. Plaintiff's evidence estimated the value of the house at $3,000 to $4,500, and that of defendant at $500 to $1,000.

The petition alleges that on April 1, 1921, "the defendant did run and operate a locomotive engine and cars over its said railroad adjoining plaintiff's said dwelling house, and that fire was communicated from said locomotive to the aforesaid dwelling and buildings, * * * and that the said dwelling and buildings and all the property situated and contained therein were totally destroyed." Damage is prayed in the sum of $3,000. The answer and reply thereto were general denials. The cause was tried to a jury, and the verdict was for defendant. A motion for new trial was sustained by the court upon the ground that error was committed in giving defendant's instruction D2, which is as follows:

"You are instructed that you are the sole judges of the credibility of the witnesses and the weight you will give to their testimony; that while plaintiff is a, competent witness in his own behalf, the jury, in determining the weight you will give to his testimony, on the testimony of any other witness, should take into consideration the interest such witness may have, if any, in the result of the suit, the manner off the witness while upon the stand testifying, the probability or improbability of the statements made, together with all the other facts in evidence, and you should view all the evidence in the light of reason and your common experience in the affairs of men, and you should give to the testimony of every witness just such weight and evidence as you may deem it fairly entitled to, under all the facts and circumstances in evidence."

From the ruling of the court sustaining plaintiff's motion for a new trial, defendant appeals. The only questions presented for our consideration relate to the granting of a new trial and the objection of plaintiff to instruction D8, given for defendant

Plaintiff charges that instruction D2 is erroneous for the reason that it singles out plaintiff, who was a witness for himself, and lays down a rule for the jury to ascertain what weight they would give his evidence. 'Defendant urges that the instruction is not open to this objection. The part of the instruction against which the objection is directed is:

"That while plaintiff is a competent witness in his own behalf, the jury, in determining the weight you will give to his testimony, or the testimony of any other witness, should take into consideration the interest such witness may have, if any, in the result of the suit," etc.

Defendant urges this is a correct and proper declaration of the law, and that the court erred in sustaining plaintiff's motion for a new trial and in setting aside the verdict on the ground that the instruction was improper.

Defendant urges that this instruction is the only one given the jury on the credibility of the witnesses and the value to be given their testimony; that it is not confined to plaintiff's testimony, but includes that of all the witnesses, and that the instruction is shorn of any objectionable element by the inclusion therein of the clause "or the testimony of any other witness," thus making it a general instruction on the credibility of the witnesses, directing the jury to consider any interest the witnesses may have in the case, and that, while the plaintiff is referred to specifically, the instruction is made to apply to the testimony of others as well. We are aware that hitherto the propriety of giving such an instruction has been ground for dispute. It is also true that such...