Tapley v. St. Louis & H. Ry. Co.

• Decision Date: 04 February 1908
• Parties: TAPLEY v. ST. LOUIS & H. RY. CO.
• Court: Missouri Court of Appeals

107 S.W. 470

129 Mo. App. 88

TAPLEY v. ST. LOUIS & H. RY. CO.

St. Louis Court of Appeals, Missouri.

February 4, 1908.

Rehearing Denied February 18, 1908.

1. RAILROADS — FIRES — EVIDENCE — CIRCUMSTANTIAL EVIDENCE.

In an action for the destruction of a building alleged to have been caused by sparks from one of defendant's engines, plaintiff can establish his case by circumstantial evidence, and will not be defeated for lack of positive testimony, if he proves facts authorizing an inference that coals or sparks from an engine of the company were the source of his loss.

2. SAME — DEMURRER TO EVIDENCE.

In an action for the destruction of a building by fire, alleged to have been caused by sparks emitted from one of defendant's engines, evidence held to tend to prove the possibility and consequent probability that the fire was communicated from defendant's engine, and sufficient against a demurrer to the evidence.

3. SAME — FIRES — SIMILAR ACTS AND TRANSACTIONS.

In an action against a railroad company for the destruction of a building by fire, caused by sparks emitted from one of defendant's engines, evidence as to sparks having been thrown by other of defendant's engines was admissible.

Appeal from Circuit Court, Pike County; David H. Eby, Judge.

An action by Joe Tapley against the St. Louis & Hannibal Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Jesse B. Jones and J. D. Hostetter, for appellant. Tapley & Fitzgerrell, for respondent.

BLAND, P. J.

On October 7, 1906, fire originated in defendant's depot at Bowling Green, Pike county, Mo., and was communicated to Mrs. McMillan's barn, and thence to plaintiff's barn, situated across the street north of the depot. The depot and both barns were entirely consumed by the fire. The action is to recover the value of plaintiff's barn, the destruction of which is alleged to have been caused by sparks emitted from one of defendant's engines. Defendant's railroad runs in a southeasterly direction, through the city of Bowling Green. The depot building was located 10 or 12 feet north of and parallel with the main railroad track. The building was a two-story frame structure, from 50 to 60 feet long, built of pine lumber, with two doors fronting the railroad track. A one-story bay window, projecting outward, was built in between the two doors. The building had been neglected and had settled on the north side and the wall had parted from the bay window, leaving a crack two or three inches wide. The wood about this crack had decayed, and was dry and spongy. A wooden platform 10 or 12 feet wide was constructed between the depot and the track. Electric lights were burning on this platform on the night of the fire. There are two theories in respect to the origin of the fire. Plaintiff's theory is that it originated from sparks from an engine which passed the depot about 30 or 40 minutes before the fire was discovered. Defendant's theory is that the fire originated from the burning stub of a cigarette. The undisputed evidence is that it was very dry at the time of the fire, and the material of which the depot was constructed was old, dry, and very combustible. The fire was discovered about 9 p. m., and, according to plaintiff's witnesses, was burning on the outside of the building, in the crack of the bay window, or about it, and started from two to five feet above the platform. An engine hauling four or five freight cars and a caboose had pulled into the depot about 8:30 p. m., and stopped with the caboose opposite the depot for the purpose of discharging passengers. The train stopped about 10 minutes, then proceeded on its way south. As it passed a mill three or four blocks south of the depot, the engine pulled up a slight grade and was seen to emit sparks, which were carried to the northeast; the wind blowing from the southwest at the time. Plaintiff was not at home on the night of the fire. He testified that on former occasions he had seen sparks emitted by defendant's passing engines fly north of his barn into his yard. After the freight train pulled out the depot was locked, and the agent went home, and no one was about the depot at the time the fire started. To sustain its theory that the fire originated from a cigarette stub, defendant offered evidence tending to prove the grade was descending from the northwest beyond...