Webb v. Baldwin

• Decision Date: 07 May 1912
• Citation: 147 S.W. 849
• Parties: WEBB v. BALDWIN et al.
• Court: Missouri Court of Appeals

147 S.W. 849

WEBB v. BALDWIN et al.

St. Louis Court of Appeals. Missouri.

May 7, 1912.

Rehearing Denied June 4, 1912.

1. APPEAL AND ERROR (§ 1033)—HARMLESS ERROR—INSTRUCTIONS.

There was no error prejudicial to plaintiff in refusing an instruction that the jury should consider the evidence of "defendant's" verbal admissions with caution, where the evidence of defendant's admissions was given solely by plaintiff.

2. APPEAL AND ERROR (§ 1067) — ADMISSIONS.

A judgment will not be reversed because of the refusal to instruct that evidence of verbal admissions should be received with caution.

3. TRIAL (§ 296) — INSTRUCTIONS—CURE OF ERROR.

That an instruction refers to the pleadings for ascertaining the issues is not reversible error where the facts necessary to be found are fully stated in other instructions.

4. NEGLIGENCE (§ 140) —INSTRUCTIONS—ACTIONABLE INJURIES — "CASUALTY" — "ACCIDENT."

An instruction in an action for damages for negligently destroying plaintiff's wheat stacks by fire that if the jury believed that the fire which destroyed plaintiff's grain was the result of "mere accident or casualty," and not of negligence by defendant, they should find for defendant was not erroneous; the word "casualty" being synonymous with "accident."

5. NEGLIGENCE (§ 121)—PRESUMPTIONS.

In the absence of contrary proof, the law indulges a presumption against the existence of negligence.

6. TRIAL (§ 244)—INSTRUCTIONS—INSTRUCTING ON FACTS.

In an action for damages for destroying plaintiff's stacks of grain while they were being threshed by defendant's threshing machine, the court instructed that if an ordinarily prudent threshing machine man would not, under the circumstances shown, have used a spark arrester on the engine, the jury could not find defendant negligent in failing to use such spark arrester, and also charged in another instruction that the fact that the fire which destroyed the grain was set out by sparks from defendant's engine was a fact which plaintiff must prove by the greater weight of the evidence, along with other facts necessary to entitle him to recover. Held, that the instructions did not single out particular facts at issue and give them undue prominence, each instruction having merely distinctly pointed out one of the issues and instructed separately thereon, nor was the last instruction erroneous for not stating what "other facts" were necessary to be proven to entitle plaintiff to recover; such other facts being pointed out in the other instructions.

7. TRIAL (§ 193)—INSTRUCTIONS — CHARGES ON FACTS.

An instruction should not indicate the judge's opinion on a question of fact which is for the jury.

8. APPEAL AND ERROR (§ 1033)—HARMLESS ERROR—INSTRUCTIONS.

An instruction in an action for damages for negligence in destroying plaintiff's grain stacks was not misleading to plaintiff's prejudice by injecting into the case the question of defendant's negligence in not using a proper threshing engine, when that was not pleaded.

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

Action by W. S. Webb against Thomas S. Baldwin and others. From a judgment for defendants, plaintiff appeals. Affirmed.

Action to recover damages for the destruction by fire of plaintiff's wheat and oats in stack; it being alleged that, while defendants were engaged in threshing the wheat and oats for and at the instance of plaintiff, they negligently caused sparks to escape from the threshing machine engine and to fly upon the stacks and ignite them. The specific acts of negligence alleged in the petition are: (1) Negligently placing the engine with reference to the stacks being threshed and the wind that was blowing; (2) negligently using and operating the engine without using a spark arrester thereon; (3) negligently and unskillfully running, managing, and operating the engine and separator and the appliances thereto belonging.

The defendants answered separately; defendant Gard Baldwin being a minor, by his guardian ad litem. Defendants Vane and Gard Baldwin admitted that they owned and operated the threshing machine at the time of the fire, and that at the instance of the plaintiff they were engaged at the time in threshing his wheat and oats for the plaintiff, and that, while they were engaged in the threshing of said grain, plaintiff's stacks took fire and were partially destroyed. But the defendants aver that the fire was communicated to the stacks by means to the defendants unknown, and was not communicated from the engine operating the threshing machine. These defendants then deny plaintiff's allegations of negligence, and deny each and every allegation in the petition contained not by the answer specifically admitted. The separate answer of defendant Thomas S. Baldwin contained a general denial and made no admissions.

A trial being had, the case was submitted to the jury upon the evidence adduced and the instructions of the trial court, the jury returned a verdict for the defendants, and a judgment was entered thereon. The plaintiff, having unsuccessfully moved for a new trial, duly prosecuted his appeal to this court.

It is unnecessary to set forth the evidence or the facts which it tended to establish. It is sufficient to say that plaintiff's evidence tended to prove that the defendants owned and operated the threshing machine and engine in question and were negligent in the three particulars specified in the plaintiff's petition, while on the other hand the defendants' evidence tended to prove that the defendant Thomas S. Baldwin had no share in the ownership or operation of the machine, and tended to prove that none of the defendants were guilty of negligence in any of the respects mentioned. None of the witnesses were able to testify directly as to what started the fire, nor even that sparks flew out of defendants' engine, but plaintiff's case depends in this respect upon inferences to be drawn from circumstances which his evidence tends to prove, such as that defendants used a fuel calculated to make sparks, that the wind blew over the engine in the direction of the stack, etc. Defendants' evidence strongly tended to disprove the existence of such circumstances and to prove that a man was smoking a pipe in the stackyard about the time the fire started. Plaintiff testified that after the fire defendant Gard Baldwin came running up to him and said, "My fire run down and I filled it up full of old rails and God I burned up everything." On the other hand, several witnesses testified on behalf of defendants that the plaintiff had stated that he did not blame the defendants; that they did not owe him anything; that it was his own fault because he had so stacked his grain as to force the engine too close to the stack, and had stacked too much grain in the one stackyard, etc.

We may add that there was substantial evidence upon which to base the giving of all the instructions that were given by the court. These instructions, so far as they bear on the points involved in this appeal, are here set forth. At the request of plaintiff the court gave the following instruction: "(1) The court instructs the jury that if they find from the evidence in the cause that on or about the 16th day of August, 1909, the defendants, with the consent of plaintiff, undertook to thresh for plaintiff his crop of wheat and oats and belonging to plaintiff, if such is the fact, and that while so engaged in threshing the same fire was communicated to some of plaintiff's unthreshed wheat and oats by sparks escaping, if such is the fact, from the steam engine in use by defendants in such threshing, and that plaintiff's said wheat and oats were wholly consumed by fire so communicated, if so the jury find, and that the communication of fire to plaintiff's said wheat and oats and the burning of the same, if so the jury find, was directly caused by the failure, if any, of the defendants to exercise ordinary care either in placing said steam engine with reference to plaintiff's said wheat and oats and the way the wind was blowing, or in operating said steam engine without a spark arrester, or in running and operating said steam engine while threshing plaintiff's said wheat...