Waddell v. Chicago & Alton Ry. Co.
| Decision Date | 18 January 1910 |
| Citation | 124 S.W. 588,146 Mo.App. 604 |
| Parties | WM. H. WADDELL, Respondent, v. CHICAGO & ALTON RAILWAY COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Pike Circuit Court.--Hon. David H. Eby, Judge.
Judgment affirmed.
Scarritt Scarritt & Jones and Chas. M. Miller for appellant.
The court erred in not directing a verdict for the defendant under the pleadings and the evidence. Peffer v Railroad, 98 Mo.App. 291; Fund v. Railroad, 123 Mo.App. 169; Bank v. Railroad, 98 Mo.App. 330; Peck v. Railroad, 31 Mo.App. 125; Moore v Railroad, 28 Mo.App. 622; Glick v. Railroad, 57 Mo.App. 105.
Tapley & Fitzgerald and Dempsey & McGinnis for respondent.
The authorities cited by appellant do not support its contention. The case falls under the following: Holland v. Railroad, 13 Mo.App. 585; Kenney v. Railroad, 70 Mo. 243; Torpey v. Railroad, 64 Mo.App. 382; Fields v. Railroad, 113 Mo.App. 642; Wright v. Railroad, 107 Mo.App. 209; Brooks v. Railroad, 98 Mo.App. 166; Lead Co. v. Railroad, 123 Mo.App. 394; Root v. Railroad, 195 Mo. 367.
Plaintiff sued to recover for the loss of oats, hay in stack, a meadow of timothy and other grasses, and fifty rails, stated to have been destroyed by a fire set out by one of defendant's locomotives. A verdict and judgment were given in his favor for $ 450 and defendant appealed, contending the evidence did not prove the fire was set by one of its locomotives. Stating the evidence in the phase most favorable to plaintiff, the facts shown are these: The fire broke out about noon of a day in October, or was discovered at that time. Defendant's railroad runs through plaintiff's farm and some time from twenty minutes to half an hour after a freight train had passed, plaintiff detected the fire. He said he knew it was before twelve o'clock for he was eating an early dinner; was between half-past eleven and a quarter to twelve; he had been hauling posts, and while doing so saw a train going west just after eleven o'clock; could not state the time definitely; did not notice how many cars the train had or what kind of an engine; did not pay much attention to it; had a meadow in timothy, clover, red top and blue grass; the wind was blowing from the northeast, which would carry the fire toward the southwest where the meadow burned; the weather was dry; defendant's right of way had been mowed but not raked, and there was dry grass over it; the fire started on the right of way and burned into plaintiff's fields; he could see where it started; where it caught on the right of way, thence burning into the fields and toward the south; caught on the right of way twenty feet from the railway track; burned ten acres of the previous summer's grass and then ran into a meadow where it burned twenty acres, and in so doing burned three stacks of hay and ten tons of oats which had been ricked up in the field; dead grass and weeds were still on the right of way where the fire started; the wind blew the fire out into the fields before it had burned much on the right of way. Another witness testified to seeing a freight train going east between eleven and twelve o'clock, and probably a half hour later he saw the fire burning "right along close to the fence at the right of way" and plaintiff's rick was burning. This witness said there was fire on the right of way and burning back toward it, but was not as much as in the meadow where there was high grass; the right of way had been mowed and the trash was on the ground, not having been raked off; could not tell what kind of a train he saw going east as witness was three-fourths of a mile from it; was a freight train; this was between half-past eleven and twelve o'clock. Such, in substance, is the evidence regarding the source of the fire.
To our minds the evidence is quite persuasive that the fire was ignited from a spark or ember emitted from one of the locomotives which passed a short time before the fire was seen. This was the probable origin of it, considering all the facts in proof, and probability is the most that can be established either by direct or circumstantial evidence. The direct testimony of witnesses is affected as to cogency by their liability to err intentionally or unintentionally though, of course, that species of evidence is usually more satisfactory than circumstantial. The question is whether the probability raised by the evidence was of the degree of cogency which sufficed to send the case to the jury, and we think it was, both on principle and the weight of authority. In other cases we have reasoned about this question and reviewed many decisions touching it, which we will not examine again. [Gibbs v. Railroad, 104 Mo.App. 276, 78 S.W. 835; Big River Lead Co. v. Railroad, 123 Mo.App. 394, 101 S.W. 636; Manning v. Railroad, 119 S.W. 464.] At present we shall only refer to cases, the facts of which are enough like the facts before us, to make them authority on the question of whether the court should have directed a verdict for defendant or have left to the jury the issue of whether one of defendant's locomotives kindled the fire. If our opinion was opposed to this ruling, as it is not, we would feel controlled by the decision of the Supreme Court in Redmond v. Railroad, 76 Mo. 550, wherein the proof of the origin of the fire was like what we have here. The Supreme Court recited the evidence on the subject as given by two men who were a quarter of a mile from the place where the fire started, saw a train pass and about fifteen minutes afterwards observed the fire when it was fifteen yards west of the right of way. The wind...
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