Waddell v. Chicago & A. Ry. Co.

• Decision Date: 18 January 1910
• Citation: 124 S.W. 588,146 Mo. App. 604
• Parties: WADDELL v. CHICAGO & A. RY. CO.
• Court: Missouri Court of Appeals

124 S.W. 588

146 Mo. App. 604

WADDELL v. CHICAGO & A. RY. CO.

St. Louis Court of Appeals. Missouri.

January 18, 1910.

1. RAILROADS (§ 484) — FIRES — EVIDENCE— SUFFICIENCY.

In an action against a railroad, held a question for the jury whether a fire was set by one of defendant's locomotives.

2. RAILROADS (§ 464)—FIRES—CAUSE.

Under Rev. St. 1899, § 1111 (Ann. St. 1906, p. 963), making a railroad liable for injuries by fire communicated by a locomotive, in an action for such injuries, plaintiff was bound to prove, not only that the damage came from one of defendant's trains, but from fire emitted from a locomotive, and not by fire which escaped in some other mode from the train.

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

Action by W. H. Waddell against the Chicago & Alton Railway Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Scarritt, Scarritt & Jones, for appellant. Dempsey & McGinnis, for respondent.

GOODE, J.

Plaintiff sued to recover for the loss of oats, hay in stack, a meadow of timothy and other grasses, and 50 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 20 minutes to half an hour after a freight train had passed plaintiff detected the fire. He said he knew it was before 12 o'clock, for he was eating an early dinner, was between half past 11 and a quarter to 12. He had been hauling posts, and while doing so saw a train going west just after 11 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 20 feet from the railway track, burned 10 acres of the previous summer's grass, and then ran into a meadow where it burned 20 acres, and in so doing burned 3 stacks of hay and 10 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 11 and 12 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 11 and 12 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...