Smith v. Hannibal & St. Joseph R.R. Co.

Decision Date28 February 1866
Citation37 Mo. 287
CourtMissouri Supreme Court

Appeal from Buchanan Common Pleas.

Carr, for appellant.

I. An action does not lie for a reasonable exercise of one's right, thought it be to the injury of another. (Philad. & Read. R. R. Co. v. Yeiser, 2 Am. R. R. Cas. 325, and authorities there cited; s. c. 8 Barr, 366; Burroughs v. Housat. R. R. Co., 2 Am. R. R. Cas. 30; s. c. 15 Conn. 124; Rood v. N. Y. & Erie R. R. Co., 18 Barb. 80.)

The evidence adduced on behalf of the appellant shows beyond a reasonable doubt that the change of engines was manifestly for the better; that there was a great deal less danger from sparks and fire being communicated to property along the line of the road from these coal-burning engines, constructed on that plan of appellant's, than there was from the old fashioned wood-burning engines. The appellant not only had the right to make the change, but it was for the benefit of the people living and owning property along the line of the road to make the change.

II. The allegation in the respondent's petition is that the appellant was guilty of negligence. The onus probandi was on him to show beyond a reasonable doubt that the appellant was guily of negligence. The appellant being engaged in the exercise of a lawful right, the law will not presume it was guilty of negligence in the exercise of its rights merely from the fact of the burning up of the apple-trees and fencing sued for. The respondent must prove positive negligence before a jury is authorized to find a verdict against the appellant. This the respondent utterly and totally failed to do. The court below erred, then, in not setting aside the verdict rendered in this case. (Philad. & Read. R. R. Co. v. Yeiser, 2 Am. R. R. Cas. 325; Burroughs v. Housat. R. R. Co., 2 Am. R. R. Cas. 30; Rood v. N. Y. & Erie R. R. Co., 18 Barb. 80.)

III. The respondent was guilty of negligence himself, in not plowing around his orchard, and particularly in not plowing along that side next to appellant's railroad, so as to prevent fire from running over his orchard. A little precaution on his part would have prevented his orchard from being burned. He was guilty of gross negligence in suffering dry weeds and tickle-grass to accumulate along the run of locust-trees in a windrow three or four feet high, close to the appellant's railroad, on his own land. Even if it were true that the appellant were guilty of negligence, in running its engines as alleged, the respondent was likewise guilty of negligence in the manner aforesaid, and in this case, having contributed to his own injury, cannot recover. (Wynan v. Ulland, 5 Watts, 524; 8 Barb. 376; Penn. R. R. Co. v. Aspall, 23 Penn. 147; 14 Barb. 585; Hartfield v. Roper, 21 Wend. 615; Ang. on Carr. 335, 564-5; Smith v. Hardy, 31 Mo. 412; Reeves v. Larkin, 19 Mo., 192; Whit. Pr. 689-93; Willis v. R. R. Co., 32 Barb. 398; Cityman v. N. Y. & Harl. R. R. Co., 2 N. Y. 472; Huelsenkamp v. Citiz. R. R. Co., 34 Mo. 45.)

Farnsworth, for respondent.

The court properly gave the instructions one, two, three and four asked by the plaintiff, numbers one, two and four being predicated solely on the carelessness of the defendant and its agents, number three on the presumption arising from the setting fire to the plaintiff's farm by the defendant's engine.

Negligence or want of care is a question to be determined by a jury. (2 Am. R. R. Cas. 114.) The care required of plaintiff is that degree of care which may be reasonably expected from one in his situation. (2 Am. R. R. Cas. 389, 328, 836, 351, 114; 22 Mo. 374.)

HOLMES, Judge, delivered the opinion of the court.

The plaintiff produced evidence showing that in the spring of 1864, his orchard and fences had been destroyed by fire, and the amount of the damage; that a short time after a train of cars had passed on the railroad, going west, a fire was seen in the dry grass among the locust trees standing thick along the orchard, and some forty or fifty feet north of the railroad; and that a high wind blowing from the south carried the fire directly into the orchard; that, at the same time, two small boys were engaged in burning piles of cornstalks in several places to the south of the railroad and orchard, one of them within about sixty yards of the railroad; that no one actually saw how the fire originated, but a son of the plaintiff, who was plowing in a field at some distance, out of sight of the orchard, and saw the fire soon after it began, thought it arose from sparks from the engine; and another son, a boy of twelve years of age, who was standing, at the time he first saw the fire, some two hundred yards away from the nearest pile of burning stalks, thought no sparks flew from them. Other witnesses stated that prior to 1861 engines with wire gauze bonnets, or spark catchers, on chimneys with flaring tops, were used on the road; but that since that time engines with straight topped chimneys, without any visible bonnet, or spark arrester, had been in use, the internal construction of which they did not appear to know; but one of them thought sparks came much freer from these last. It appeared also that no fire had been set by engines before in that neighborhood.

This being substantially the state of the plaintiff's case, the defendant's counsel asked the court to instruct the jury to find for the defendant. The court declined to pass upon the instruction, unless the counsel would then submit the case to the jury. It was decided in Clark's Adm'x v. Han. & St. Jo. R. R. Co. (36 Mo. 202) that it was proper for the court to pass upon such instructions when asked at the close of the plaintiff's evidence.

On the part of the defendant, the evidence showed that prior to 1861 the company have used wood bnrning engines, with wire gauze bonnets, or spark catchers, on the chimneys, but that since that year they had used, instead, coal burning engines with straight chimneys, and with subtreasuries, or spark receivers, (being an extension of twenty-one inches in the smoke box) for the purpose of arresting sparks and cinders; that the coal burning engines were safer against damage from sparks than the other; that they emitted no sparks unless worked hard, or the receiver was full; that the engineer could tell when the receiver was full; that to the east of this farm the grade, going west, was slightly ascending, and that nearly opposite the house and orchard it began to be strongly descending; that little steam was used in approaching the farm that it was shut off altogether about opposite the house, and that the engines passed through the farm with little or no steam on. It appeared that the company were well supplied with coal, and further that there was a hedge of locust trees along the railroad, and between the railroad and the orchard, on the edge of plaintiff's land; that a windrow of dry grass and weeds had been blown up by the wind against the locust trees, and that stacks of hay had been known to catch fire from piles of burning cornstalks at a distance of two or three hundred yards.

The defendant also offered to prove that the engineers employed on that division of the road were skillful and careful men, and that the builder of the engine used on this occasion was a skillful mechanic. This evidence was excluded. We think it might properly have been admitted.

The defendant excepted to the ruling of the court allowing witnesses to give their judgment as to the value of the trees destroyed, without first stating that they knew their value. We see no material error in this.

The main question here is nearly the same, whether considered as arising upon the instruction which was refused for the defendant at the close of the plaintiff's evidence, or upon the third instruction given for the plaintiff when the case was submitted to the jury. The defendant's evidence tended to show that the change of engines, made in 1861, had been rather for the better than the worse, in respect of danger from sparks, and to strengthen the possibility that the fire might have been communicated from the burning cornstalks rather than from the engine. We cannot say that there was any evidence before the jury which tended to show actual negligence on the part of the defendant, and the plaintiff was not entitled to recover, unless the proposition can be maintained, that from the mere fact that a fire was set by sparks from the engine, and damage done, “the presumption is that said fire escaped by the negligence of the defendant or its agents.” The instruction seems to propound a conclusive presumption of law in reference to the issue, and a kind of disputable presumption of fact in reference to the matter of negligence. The question presented is, whether these facts amount to a prima facie case of liability on the ground of negligence.

There are no statutes in this State which declare that any such state of facts shall constitute a presumptive or prima facie case of liability, nor does this belong to a class of cases in which there are any special presumptions of law or fact arising out of the peculiar relations of the parties or privity of contract. Presumptions of fact are mere arguments at best, and are only such as would warrant a jury in inferring the fact of negligence from the other facts proved, in the ordinary course of reasoning, according to the natural and proper relations of things, and the common sense and experience of mankind. (1 Greenl. Ev. §§ 44, 48.) It is not apparent how, by any rational process of thinking, a jury could draw the conclusion, from the facts proved here, that the defendant has been guilty of actual negligence. The more reasonable presumption would rather seem to be that the fire had occurred by accident or mischance. On the other hand, there would seem to be like ground for a presumption equally strong that the fire had been set by sparks from the burning cornstalks, and...

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