Webb v. Baldwin

• Decision Date: 07 May 1912
• Citation: 147 S.W. 849,165 Mo.App. 240
• Parties: W. S. WEBB, Appellant, v. THOS. S. BALDWIN et al., Respondents
• Court: Missouri Court of Appeals

147 S.W. 849

165 Mo.App. 240

W. S. WEBB, Appellant, v. THOS. S. BALDWIN et al., Respondents

Court of Appeals of Missouri, St. Louis

May 7, 1912

Appeal from Monroe Circuit Court.--Hon. David H. Eby, Judge.

AFFIRMED.

STATEMENT.--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 Bard 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 was guilty of negligence in any of the respects mentioned. None of the witnesses was 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 stack yard 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 stack yard, 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 and oats, your verdict should be for the plaintiff, and you should assess his damages at such sum or sums as you may find from the evidence in the cause the said wheat and oats so burned, if so the jury find, were reasonably worth at the time and place it was so burned, not to exceed the sum of eight hundred dollars, and in this connection you are instructed that by ordinary care, as used herein, is meant such care as a person of ordinary prudence would use under like or similar circumstances to those shown in evidence."

The court refused to give the following instruction offered by the plaintiff:

"III. The court instructs the jury that in weighing the evidence you should consider the evidence of verbal statements and admissions of the defendant, if any, with care and caution, taking into consideration the liability of the witnesses to misunderstand and to misquote the words used by defendant in such conversations, if any."

At the request of defendant the court gave the following instructions:

"1 1/2. On the part of the defendants the court instructs the jury that in this case the burden of proof devolves upon the plaintiff, and he must prove that the defendants were negligent in one or more of the particulars charged in the petition, and that because of such negligence, if any, sparks of fire escaped from defendants' engine and destroyed plaintiff's grain, and unless plaintiff has proved these facts by the greater weight of the evidence, your verdict must be for the defendants."

"2. The jury are instructed that the charge of negligence made by plaintiff against defendants by this action must be proved to the satisfaction of the jury by the greater weight of the evidence. The jury have no right to presume negligence and if the evidence does not preponderate in favor of plaintiff, then your verdict should be for defendants."

"3. The court instructs the jury that if they believe from the evidence that the fire which destroyed plaintiff's grain was the result of mere accident or casualty, and not of negligence on the part of defendant, then your verdict must be for defendants."

"4. If the jury find and believe from the evidence that an ordinarily prudent threshing machine man, would not, at the time and place, and under the circumstances shown in the evidence have used a spark arrester on the engine, then you cannot find defendants negligent in failing to use such spark arrester."

"4 1/2. That the fire which destroyed plaintiff's grain was set out by sparks escaping from defendants' engine, is a fact that plaintiff must prove by the greater weight of the evidence along with all the other facts necessary to be proved by him to entitle him to recover in this action."

"5. If the jury believe from the evidence that the engine used by defendants to thresh plaintiff's grain, was one of the late models, J. I. Case engine, and one of the latest improved style and patterns, and was equipped in a reasonably safe manner for threshing grain, and was such an engine as was in general use by ordinarily prudent threshing machine men, and was one such as is usually and ordinarily provided by reasonably prudent men for threshing grain, then you cannot find defendants negligent in providing and using said engine."

Judgment affirmed.

James P. Boyd and Frank W. McAllister for appellant.

(1) Instruction No. 3 offered on the part of plaintiff was in the usual form which has been approved by the courts of this state and should have been given. 1 Greenleaf on Evidence, p. 200; State v. Glahn, 97 Mo. 693. (2) Defendant's instruction No. 1 1/2 is erroneous and has been disapproved by the courts of this state so frequently that appellant feels it is scarcely necessary to discuss it. Magrane v. Railroad, 183 Mo. 131; Jordon v. Railroad, 202 Mo. 428; Pandjiris v. Hartman, 196 Mo. 547; McGinnis v. Railroad, 21 Mo.App. 413; Proctor v. Loomis, 35 Mo.App. 488. (3) Instruction No. 3 should not have been given in this case. McCarty v. Railroad, 30 Pa. 247; Railroad v. Car Co., 139 U.S. 79; 2 Words and Phrases, p. 1003; Gelvin v. Railroad, 216 Mo. 209. (4) Instructions which single out facts for emphasis or leave out of view other relevant facts, are erroneous. Giblan v. Railroad, 129 Mo.App. 102; Gage v. Mears, 107 Mo.App. 147. (5) Defendant's instruction No. 5 is erroneous because it submits an issue outside of the pleadings in this cause. Glass v. Gelvin, 80 Mo. 297.

Harry J. Libby, Guthrie & Franklin and Thos. F. Hurd for respondents.

(1) Defendant instruction No. 1 1/2 was not erroneous...