St. Joseph Folding-Bed Co. v. Kansas City, Ft. S. & M. R. Co.

• Citation: 50 S.W. 85,148 Mo. 478
• Parties: ST. JOSEPH FOLDING-BED CO. v. KANSAS CITY, FT. S. & M. R. CO.
• Decision Date: 07 March 1899
• Court: United States State Supreme Court of Missouri

50 S.W. 85

148 Mo. 478

ST. JOSEPH FOLDING-BED CO. v. KANSAS CITY, FT. S. & M. R. CO.

Supreme Court of Missouri, Division No. 2.

March 7, 1899.

NEW TRIAL — BURDEN OF SHOWING ERROR — NEWLY-DISCOVERED EVIDENCE — AMOUNT OF DAMAGES — ORDERS OF COURT — CONSTRUCTION.

1. The burden of showing error in granting a new trial is on the party appealing from the order granting it.

2. A new trial will not be granted for newly-discovered evidence as to damages, unless it shows the verdict to be so manifestly excessive as to entitle defendant to a new trial.

3. In an action for property destroyed by fire, an order provided that, in view of the fact that the evidence of the fire's origin was circumstantial, the large amount involved, and the large verdict rendered, the evidence as to the value is not as satisfactory as it should be, and the motion for a new trial will be sustained for the reason that defendant has discovered additional evidence as to the value of the property. Held, that a new trial was not granted on the ground of newly-discovered evidence alone.

Appeal from circuit court, Jackson county; J. H. Slover, Judge.

Action by the St. Joseph Folding-Bed Company against the Kansas City, Ft. Scott & Memphis Railroad Company. From an order granting a new trial, plaintiff appeals. Affirmed.

R. A. Brown, for appellant. Wallace Pratt and I. P. Dana, for respondent.

BURGESS, J.

This is an action for damages alleged to have been sustained by plaintiff by reason of the negligent management of one of defendant's engines by its servants, in consequence of which sparks of fire were emitted therefrom, and communicated to plaintiff's property, thereby consuming it, to its damage in the sum of $23,421.99. The case was tried by the court and jury. The fire occurred on or about the 27th day of February, 1895. At that time, and prior thereto, plaintiff was operating a sawmill and furniture factory in the town of Black Rock, Ark. The mill was constructed close to a spur track of defendant's railroad, which ran from the town down the river to some sawmills. West of this building, and immediately on the opposite side of this spur track, are located plaintiff's lumber yards. About 80 feet due south of plaintiff's sawmill building, and east of said spur track, was located a large frame sawmill building, known as the "Deland Mill." The end of this building facing the spur track was open. Near the open end of this building, and on the second floor, there was a large shingle machine, under which was a large hole or chute, through which the shingles and refuse fell. At the bottom of this chute, and on the ground floor, was a large pile of rubbish or refuse wooden matter. About 500 feet southeast of plaintiff's mill stood what was known as the "Decker Sawmill." About noon on the day of the fire, or shortly before that time, one of defendant's railroad engines was engaged in switching on the spur track. It had gone south of plaintiff's mill building, picked up two empty box cars, and while backing along the track in front of the Deland mill building, for the purpose of switching the two box cars off on another spur track, which extended down in front of the Decker mill, the engineer in charge reversed the engine, when the drive wheels were seen to slip upon the rails, and large volumes of black smoke and showers of cinders to escape from the smokestack, some of the cinders being as large as grains of corn (one of which set fire to the hat of a bystander), which were carried by the wind towards the open end of the Deland mill; and within 10 to 30 minutes thereafter fire was discovered at the foot of the chute under the shingle machine, which rapidly spread to and consumed plaintiff's mill building and lumber yards. The engine from which it is claimed by plaintiff the sparks escaped which caused the fire had the most approved appliances for preventing the escape of sparks and cinders, and was in first-class condition, and the engineer in whose control it was, was experienced and careful in its management. The principal part of plaintiff's claim is for lumber destroyed by the fire. The jury returned a verdict for plaintiff, assessing its damages at $17,000. In due time defendant filed motion to set aside the verdict and for a new trial, which was sustained, and a new trial granted. From this order plaintiff appeals.

Plaintiff having appealed from the order of the court granting defendant a new trial, the burden rests upon it of showing that error was committed in so doing. In the motion for a new trial a number of grounds are assigned therefor, the most important being the admission of irrelevant, incompetent, and illegal testimony offered by plaintiff; the exclusion of proper, competent, material, and legal evidence offered by defendant; giving instructions by the court on the part of plaintiff and of its own motion; the refusal of instructions asked by defendant; modifying instructions asked by defendant, and then giving them as modified; that the instructions given were conflicting, misleading, and contradictory; the verdict of the jury was against the evidence, and against the law as declared by the court; the damages assessed are excessive; and because since the trial defendant has discovered new and additional evidence, which is not merely cumulative, and does not simply impeach or contradict any witness at the former trial, and which would change the result in the event of...