W. W. Taylor & Sons Brick Co. v. Kansas City S. Ry. Co.

• Decision Date: 16 June 1908
• Court: Missouri Supreme Court
• Parties: W. W. TAYLOR & SONS BRICK CO. v. KANSAS CITY SOUTHERN RY. CO.

112 S.W. 59

213 Mo. 715

W. W. TAYLOR & SONS BRICK CO. v. KANSAS CITY SOUTHERN RY. CO.

Supreme Court of Missouri, Division No. 2.

June 16, 1908.

Rehearing Denied July 14, 1908.

1. APPEAL AND ERROR—QUESTIONS REVIEWABLE—THEORY OF TRIAL.

A case will be reviewed by the appellate court on the theory adopted by the parties in the trial of the cause.

2. SAME—QUESTIONS NOT RAISED BELOW.

Though, in an action against a railroad for destruction of property by fire, plaintiff had under its petition a sufficient basis for testimony that the fire originated from engines used by other railroad companies on defendant's tracks, but tried the case on the theory that the fire was caused by defendant's engine, and requested an instruction based on such theory, it could not on appeal claim that it was entitled to recover on the theory that the fire was caused by engines used by other railroads on defendant's tracks, or complain of counter instructions given at defendant's request limiting the recovery to the issue as pointed out by plaintiff in its instruction.

Appeal from Circuit Court, Jackson County; James H. Slover, Judge.

Action by W. W. Taylor & Sons Brick Company against the Kansas City Southern Railway Company. Judgment for defendant, and plaintiff appeals. Affirmed.

This cause is now pending in this court upon appeal on the part of the plaintiff from a judgment of the Jackson county circuit court in favor of the defendant. This is an action to recover damages for the destruction of a brick plant in Kansas City, Mo., owned and operated by the plaintiff, which is alleged to have been caused by fire from one of defendant's engines, being run and operated over defendant's railroad tracks, which passed by and near the brick plant of the plaintiff. The charge in the petition is "that on the 8th day of January, 1903, defendant carelessly, negligently, and wrongfully ran and operated an engine with a large train of cars thereto attached over its tracks aforesaid, in such a manner as to cause said engine to emit a large amount of sparks and cinders therefrom, and defendant carelessly, negligently, and wrongfully operated an engine with a defective smokestack, so that sparks and cinders escaped therefrom, and by means of such careless, negligent, and wrongful acts aforesaid sparks and cinders were emitted from one of defendant's engines and were blown against and upon the engine house and boiler room aforesaid belonging to this plaintiff," etc. After the statement of plaintiff's loss, the petition further charges "that by reason of all of the aforesaid careless, negligent, and wrongful acts of the defendant, sparks and cinders were emitted from said engine and conveyed by the wind," etc. There was also embraced in the petition an itemized statement of the loss by reason of the fire, which in the aggregate amounted to $12,771.82. The answer of the defendant was a general denial.

We shall not undertake to give in detail all of the testimony developed at the trial. We have read in detail the entire disclosures of the record and find that there was testimony offered by the plaintiff tending to show that the plaintiff on January 8, 1903, was the owner of a brick plant in Kansas City, located at First and Gillis streets. On the northwest corner of said plant was located the engine room, which was a frame structure, boarded upright with small cracks between the boards. On the east of this engine room, and adjoining thereto, was the boiler room, and east of that were office rooms, and southeast of the engine room were sheds and kilns, and a large barn on the southwest corner of the brick plant. There was other testimony tending to show: That the defendant owned and operated a double-track railway along the north side of plaintiff's brick plant, about 15 feet distant from the engine room and boiler room, as heretofore stated; that coming west on said tracks there was a steep upgrade, and engines had hard work to pull nine or ten loaded cars up that grade. It was further shown that through some sort of an arrangement the Frisco, St. Joe & Grand Island, Quincy, Omaha & Kansas City Railway Company, and the Independent Air Line were permitted to run engines and cars thereto attached over the tracks of the defendant in front of plaintiff's brick plant. One of the witnesses for the plaintiff, Ed Trapp, testified that the fire which destroyed the brick plant, in his opinion, occurred between 10 and 11 o'clock. He further stated that he saw a freight train pass over the defendant's track 10 or 15 minutes before the fire, and he says that after the passing of that freight train he does not think there was any other train that passed between that time and the fire. The freight train of which this witness testified was a freight train with one engine. He did not know how many cars were in the train. He says that he saw emitted from the engine smoke, sparks, and cinders. He said that the cinders looked like they were of pretty good size. He also stated that the sparks were a good size class of sparks. He stated that the engine of the Kansas City Southern ran over the road. He was unable to tell the name of that engine he saw that morning, as he paid no attention to that. Inquiry was made of Mr. Trapp as to his knowledge of other trains passing over the tracks of the defendant. His answer to that inquiry was that he knew nothing about the passing of other trains, and he said: "I noticed the Kansas City Southern, and I don't know of any other trains running over the tracks."

Another witness testified for plaintiff, A. B. McBeth. This witness spoke of the different railroads that operated trains over the tracks of the defendant. He saw the fire consuming this brick plant on this morning, and, while he says that frequently many trains would pass by this brick plant during the day, he says, referring to the morning of the fire: "I can't say whether I saw any freight trains passing, except the Kansas City Southern." This witness further testified that he was unable to call to mind any freight train that morning except the Kansas City Southern.

John W. Taylor, a witness on the part of the plaintiff, testified substantially as follows: "Q. Are you familiar with what trains run over that track, or did run over that track? A. I was at the time; yes, sir. Q. What trains ran over there? Mr. Crane: I understand you were in Iola when this occurred? The Witness: Yes, sir. Q. I mean, generally, prior to that? A. The Kansas City Southern seemed to have a regular time for transfers at about 10 to 10:15, from the east bottoms to the west bottoms. Q. What kind of a transfer was that? A. Freight. Q. What kind of a grade was that? A. Well, it was a very steep grade and a curve at the same time. Q. Did you ever see any freight trains of any other road running over that line except the Kansas City Southern? A. The first three months I was there the Kansas City Southern did a little switching, and then the Kansas City Suburban Belt, as it is called, did all their own switching on their line. (Objected to by defendant as incompetent, irrelevant, and immaterial.) Q. Come down to the time the Kansas City Southern took charge of the line? A. There was no freight handled by any other road. Q. Their engines handled freight there? A. Yes, sir. Q. How long had that transfer been made there at that point about 10 o'clock prior to that? A. Well, it seemed pretty regular for about a year before that. Q. How large a transfer would they usually bring up there coming west? A. Well, we didn't always count them. I don't remember that I ever counted them myself. I know they have taken some heavy trains. Q. A regular transfer of freight every day? A. Yes, sir."

Robert Campbell, a witness for plaintiff, was the engineer in charge of the engine and boiler room in the brick plant. He stated, in substance, that there was a train passed, and that it was one of the usual trains. He said it was passing upgrade and seemed to be very heavily loaded, and it was necessarily puffing very freely, as usual on a long run. He stated that he was working with Mr. Heitman in the dry room, and where they could hear the train, and there was some remark made about this train; but the witness stated that he forgot what remark it was. He then stated that the first fire he saw was about 10 minutes after the train got by. He further testified as to the extent of the damages by reason of the burning of the plant.

There was testimony offered on the part of the defendant tending to show that the equipment of the freight train engines of defendant were of the most improved character, and in perfect condition, and by reason thereof could not have emitted sparks. There was other testimony tending to show that the fire originated in plaintiff's own engine house. In other words, there was a conflict of evidence between the plaintiff and the defendant as to whether or not this fire originated from sparks or cinders emitted from the engine operated by the defendant.

At the close of the evidence, the following stipulation was filed in this cause: "By agreement of counsel it is stipulated that the jury may find simply for the plaintiff or defendant, without finding any amount, which is to be submitted to a referee."

At the request of the plaintiff, the court gave instruction No. 1, which was as follows: "The court instructs the jury that if they find from the evidence in this case that on January 8, 1903, plaintiff was the owner of the property described in the evidence, and that on said date said property was destroyed by fire communicated from an engine operated by defendant upon its road, in passing said place, provided you find said property was destroyed by a fire communicated from an engine operated by defendant upon its road, in passing the property of plaintiff in controversy, then you are instructed that defendant is liable to plaintiff for the reasonable value of the property destroyed, if any, and...