Steckman v. Quincy, Omaha & Kansas City Railroad Co.

• Decision Date: 03 April 1914
• Citation: 165 S.W. 1122,178 Mo.App. 375
• Parties: E. H. STECKMAN, Respondent, v. QUINCY, OMAHA & KANSAS CITY RAILROAD COMPANY, Appellant
• Court: Kansas Court of Appeals

165 S.W. 1122

178 Mo.App. 375

E. H. STECKMAN, Respondent, v. QUINCY, OMAHA & KANSAS CITY RAILROAD COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

April 3, 1914

Appeal from Daviess Circuit Court.--Hon. Arch B. Davis, Judge.

AFFIRMED.

Judgment affirmed.

Hall & Hall, Dudley & Selby and J. G. Trimble for appellant.

J. C Leopard and O. G. Bain & Son for respondent.

OPINION

JOHNSON, J.

Action for damages caused by a fire which plaintiff alleges resulted from sparks emitted from a locomotive operated by defendant. The fire swept over a portion of a farm of 250 acres owned and occupied by plaintiff and the petition alleges that it burned sixty-five acres of pasture of the reasonable value of $ 195; 270 rods of hedge fence of the value of $ 540; 200 rods of woven wire and barbed wire fencing of the value of $ 100; twenty rods of garden fence worth $ 15; two and one-half acres of corn worth $ 53; one acre of blackberries worth $ 50; 123 apple trees worth $ 932 seven peach trees worth $ 7; two cherry trees worth $ 2 and six plum trees worth $ 6. The prayer is for judgment for $ 1900, the sum of the enumerated items. The answer is a general denial. The jury returned a verdict for plaintiff in the sum of $ 1175 and after its motion for a new trial and in arrest were overruled, defendant appealed.

The evidence of plaintiffs tends to show that the fire which occurred in the month of October, about the 15th, destroyed the matured grass in the pasture and also a crop of rye in the adjoining field but did not injure the grass roots. It also burned a field of standing corn, destroyed some woven wire and barbed wire fences, a number of fruit trees, a blackberry patch and a hedge fence. The roots of the blackberry bushes and of the hedge were destroyed. The case was tried by the court under the view that the crops of grass, rye and corn, having matured, should be regarded as personalty and plaintiff was permitted to prove their market value as such. The fences also were treated as personalty while the blackberry bushes, hedge and fruit trees were classed as real estate and the damage caused by their destruction was attempted to be measured by proof of the difference in the market values of the land immediately before and immediately after the injury. Plaintiff testified on this subject:

"Q. State if you were acquainted with the reasonable market value of that farm and premises there just before the fire, that is, with the hedge on, the apple orchard on, with the blackberry patch on, and with the other trees you have spoken of being on, the peaches, cherries and plums? Were you acquainted with it? A. Yes, sir.

"Q. What was it reasonably worth before the fire? A. It was reasonably worth sixty dollars an acre.

"Q. What was it worth after the fire, with the orchard in the damaged condition it was and the hedge fence burned off, which you have described, and the blackberry bushes gone, and the other trees, the peach and plum trees? A. Fifty to fifty-five dollars an acre.

"Q. How many acres was there in this farm? A. 250 acres."

At the request of plaintiff the court instructed the jury "that if you find that the defendant is liable for the damage, if any, caused by the fire in this case your verdict may be rendered in a lump sum but in making up your conclusion on the several items upon which plaintiff has sustained damage, if any, you will be guided as follows: First, as to the pasture, the corn on the stalk, the woven and barbed wire fence, the garden fence, you will take into consideration the reasonable market value of said pasture, corn and fencing at the time and place of said fire, deducting whatever you may believe from the evidence the wire fence was worth after said fire. Second, as to the fruit trees, blackberries and hedge, if any, which were upon and a part of the real estate, you will take into consideration the market value of the real estate immediately before the fire and its market value immediately after the fire."

The first point presented by counsel for defendant for a reversal of the judgment is that there is a material departure between the allegations and proof of plaintiff relating to the damages resulting from the destruction of the blackberry patch, hedge and fruit trees. It is argued that the petition alleges a cause founded on an injury to personal property while the cause supported by the evidence of plaintiff and submitted to the jury is for damages to real property.

The rule that a...