Vanderburgh v. St. Louis & S. F. R. Co.

• Decision Date: 18 January 1910
• Citation: 124 S.W. 563,146 Mo. App. 609
• Court: Missouri Court of Appeals
• Parties: VANDERBURGH v. ST. LOUIS & S. F. R. CO.

124 S.W. 563

146 Mo. App. 609

VANDERBURGH v. ST. LOUIS & S. F. R. CO.

St. Louis Court of Appeals. Missouri.

January 18, 1910.

1. RAILROADS (§ 484) — FIRES — QUESTION FOR JURY.

Evidence held to raise a question for the jury whether the fire which destroyed plaintiff's property was caused by sparks from defendant's locomotive which passed with a heavily loaded train only a few minutes before the fire was discovered.

2. APPEAL AND ERROR (§ 932) — REVIEW — PRESUMPTIONS.

It will not be presumed that the jury in assessing the damages considered an item of which there was no evidence.

Appeal from Circuit Court, Dunklin County; Jas. L. Fort, Judge.

Action by W. F. Vanderburgh against the St. Louis & San Francisco Railroad Company. Plaintiff had judgment, and defendant appeals. Affirmed.

W. F. Evans, Moses Whybark, and A. P. Stewart, for appellant. E. F. Sharp and Russel & Deal, for respondent.

GOODE, J.

Plaintiff sued for the value of property said to have been consumed in a fire set by one of defendant's locomotives. The property was an iron hoop mill building, machinery, hoops, and supplies in it, in the town of Marston, New Madrid county. The mill building was adjacent to a building used as a cotton gin and also one used as a planing mill; all the buildings being under one roof. There is no doubt the property was destroyed by a fire which burst out about 1 o'clock November 12, 1906; but defendant contends the evidence was not sufficient to carry the issue to the jury of whether the fire was set by a passing locomotive. The conflagration started in the cotton gin and was discovered in a few minutes, say eight, after a heavily loaded freight train of 54 cars had passed. The day was Monday, the plant had not been in operation since the preceding Friday, and there was no fire in or about it unless some of the employés had been smoking cigarettes. There was a rather unsuccessful attempt to prove they had been. Running alongside the cotton gin were what are known as ventilators which opened into the gin house proper and communicated with ventilators extending above the roof through which cotton lint was discharged into the air. The coverings of the ventilators which projected above the roof were eight or ten inches above the tops of the pipes; the latter being two feet across and communicating with the interior of the building. The edges and sides of them and the entire roof were covered with cotton lint, a combustible material and easily ignited. ...