Wise v. Joplin R.R. Co.

• Citation: 85 Mo. 178
• Parties: WISE v. THE JOPLIN RAILROAD COMPANY, Appellant.
• Decision Date: 31 October 1884
• Court: Missouri Supreme Court

85 Mo. 178

WISE

v.THE JOPLIN RAILROAD COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1884.

Appeal from Jasper Circuit Court.--HON. JOS. CRAVENS, Judge.

AFFIRMED.

John O' Day for appellant.

(1) The court erred in submitting to the jury the questions whether the company had used the best engine and machinery and the best appliances to prevent the escape of fire, and had employed skilful and competent servants. Buffington v. R. R., 64 Mo. 246; Waldhier v. R. R., 71 Mo. 514; Edens v. R. R., 72 Mo. 212; Carson v. Cummings, 69 Mo. 325. (2) Plaintiff only avers that the fire was negligently suffered to escape from the ash-pan and fire-box, and grounds his right to recover on that statement; yet the court tells the jury that he can recover, if they find that the fire escaped from the engine, which includes not only the ash-pan and fire-box, but the smoke-stack, from which sparks are more likely to escape than any other part of the engine. This was error. Authorities, supra. (3) The court should confine its instructions to the issues made by the pleadings. Camp v. Heelan, 43 Mo. 591; Bk. v. Armstrong, 62 Mo. 59; Iron Mt. Bk. v. Murdock, 62 Mo. 70; Fulkerson v. Thornton, 68 Mo. 468; Hassett v. Rust, 64 Mo. 325; Kenney v. R. R., 70 Mo. 252. (4) A petition in an action against a railroad company, for burning property, which simply states that the railway company's servants carelessly caused or allowed fire to escape, does not state sufficient facts to state a cause of action. Weil v. Green Co., 69 Mo. 281; Waldhier v. H. & St. J. R. R. Co., 71 Mo. 514; Edens v. same, 72 Mo. 212; Harrison v. M. P. Ry. Co., 74 Mo. 364; State ex. rel. v. Griffith et. al., 63 Mo. 545. (5) The instructions given at the request of plaintiff are irreconcilable with the instructions given by the court of its own motion for plaintiff, and with the instructions given for the defendant. Each instruction must, in itself, not only be correct, so far as it goes, but consistent with the other instructions given. Henschen v. O' Bannon, 56 Mo. 289; Thomas v. Batt, 45 Mo. 384; Stevenson v. Hancock, 72 Mo. 612; Modisett v. McPike, 74 Mo. 636; Simmons v. Carrier, 60 Mo. 581. (6) If erroneous instructions are given for one party, the error is not cured by the fact that correct instructions accompanied them, nor by giving for the other party instructions explanatory or contradictory to those first given; they should be expressly withdrawn from the jury. Goetz v. H. & St. J. R. R. Co., 50 Mo. 472; Jones v. Talbot, 4 Mo. 279; Hickendee v. Griffin, 6 Mo. 37; Singer Manufacturing Co. v. Hudson, 4 Mo. App. 145.

J. W. McAntire for respondent.

(1) The instructions given for plaintiff are identical with the instructions for plaintiff approved by the Supreme Court in a similar case. Poeppers v. Missouri, Kansas and Texas R. R. Co., 67 Mo. 716. (2) The plaintiff having shown that the fire originated from sparks escaping from defendant's engine, the burden of proof was on the defendant to show that the engine from which the sparks escaped was at the time equipped with the most improved mechanical contrivances employed to prevent the escape of fire. Ill. Cent. R. R. v. Mills, 42 Ill. 410; McClelland v. Ill. Cent. R. R., 42 Ill. 354; Fitch v. Pacific R. R. Co., 45 Mo. 322. (3) The fact that the fire which caused the damage sued for was set by defendant's engine would be prima facie evidence of negligence by those who ran it, or who provided the engine with its contrivances and would throw the burden of exonerating them upon the company. Bedford v. Hannibal & St. Joseph R. R. Co., 46 Mo. 456. (4) Instructions refused by the court were properly refused, because from testimony introduced, showing that the fire had been scattered along its track, with no explanation of its cause, the jury is warranted in inferring some negligence of the company. Fitch v. the Pacific R. R. Co., 45 Mo. 322; Palmer v. Missouri Pacific Railway Co., 76 Mo. 217; Redmond v. Chicago, Rock Island & Pacific Railway Co., 76 Mo. 550. (5) Where instructions taken as a whole series applying to all the phases of the case fairly present the law to the jury and are not calculated to mislead, the judgment will not be reversed. Myers v. R. R., 59 Mo. 223. (6) If the plaintiff makes out a case upon which he can go to the jury, the court cannot, after the defence is in, assume it to be true and direct a verdict for defendant. Woods v. Ins. Co., 50 Mo. 112.

MARTIN, C.

This was an action against a railroad for negligence in permitting fire to escape from its passing trains and burn the property of plaintiff. Suit commenced February 5, 1879. It is alleged in the petition, “That on or about the said second day of November, 1879, defendant, not regarding its duty in that behalf, did, whilst running its cars and locomotive engines upon the track of said railroad, by its servants and agents near by, and through the said tract of land of plaintiff in the state of Missouri and county of Jasper aforesaid, so negligently and carelessly manage and control said cars and locomotive engine, that sparks of fire from the ash-pan and fire-box escaped, and by falling and lighting upon the dead grass and other combustible matter upon the track and right of way of said railroad, which defendant by its agents and servants had permitted to grow and accumulate thereon, set fire thereto, which fire so commenced and started on said track and right of way of said railroad, then and there spread and escaped therefrom and communicated to and set fire to the grass and other things standing and being on a tract of land of one Morrison adjoining thereto, and thence communicated and set fire to the fences, hedges and farm of plaintiff, and then and there burned and destroyed the following property belonging to plaintiff on said farm, to-wit: One hundred and twenty rods of rail fence of the value of two hundred and fifty dollars, and one hundred and twenty rods of first-class hedge of the value of two hundred and fifty dollars, all of the value of five hundred dollars.”

It is further alleged, “that the agents, servants and employes in charge of said railroad, well knew that said fire had escaped and kindled in the manner as hereinbefore stated, but wholly disregarding their duty in that behalf failed and refused to extinguish said fire and to prevent its spreading, but went away and left the same burning until it communicated to the said farm of plaintiff and destroyed said property as aforesaid.” To this petition the defendant made answer by general denial. The case was tried by a jury.

Some nine or ten witnesses were examined in behalf of plaintiff, in chief and in rebuttal. These witnesses testified substantially that on the second of November, 1873, near Carl Junction, a freight train of the defendant was going south; that its progress there was up a slightly rising grade; that on the defendant's right of way and between the tracks of its road there was dry grass, varying from six to twelve inches in height; that immediately after the train passed, the grass in two or three places on the track, as well as on the west side of it, was seen on fire; that it started right from the track and moved with the wind, which was blowing quite a gale towards the southwest; that before the train passed entirely by, the fire had spread half the length of it; that the train men could have seen it; that the train was not slackened nor whistle blown nor bell rung; that in twenty or thirty minutes it made its way into the fields on the west side of the track; that after crossing two roads and going over the premises of one Morrison it reached the plaintiff's farm, which was on the west side of the road, and burned eighty rods of rail fence and eighty rods of hedge fence; that no fire was seen on the east side of the road till the next day. Witness, Lane, testified: “I was just east of the railroad when the fire occurred. It seemed to me that the fire came up in the wake of the train. It rather left the track and went southwest. I think it started forty or sixty rods from where I was.” Witness, True, who was within thirty rods of the train when it passed, said that he had just crossed the track from the east side; that before the train came up he saw the place where the fire started; that he saw the fire itself on the track, or close to it, on the west side of it as soon as the train had passed.

On the part of the defendant evidence in contradiction of the case contained in plaintiff's evidence was submitted. The conductor and engineer testified that as the train was going south on the occasion in controversy they saw no fire on the track or on the west side of the track, but that they observed a fire near some hay stacks on the east side of the track; that fires were pretty frequent in the country at that time, and that it would not require long for the fire which they saw near the stacks to jump across the track and reach the plaintiff's premises. The fireman testified that he saw no fire on either side of the track when the train went south, and that his attention was not called to, nor did he see the fire near the haystacks on the east side, but that when he returned the next day on his train going north he noticed that the road was burned on both sides of the track. Evidence was submitted by defendant tending to prove that the engine, smoke-stack, fire-box and ash-pan were constructed of the best materials and furnished with the best known appliances to prevent the escape of fire; that the engineer and fireman were experts, well trained and skilful, and that they conducted, managed and operated the engine in the most careful and skilful manner, and that no fire did escape from it on the day complained of.

The following instructions were given at the instance of plaintiff:

“1. The court instructs the jury that if they believe, from the evidence that the Joplin Railroad Company, on or about the second day of November, 1878, while running its...