Wright v. Chicago & A. Ry. Co.

• Decision Date: 10 May 1904
• Citation: 107 Mo. App. 209,80 S.W. 927
• Parties: WRIGHT v. CHICAGO & A. RY. CO.
• Court: Missouri Court of Appeals

80 S.W. 927

107 Mo. App. 209

WRIGHT v. CHICAGO & A. RY. CO.

St. Louis Court of Appeals. Missouri.

May 10, 1904.

RAILROADS—ACTIONS FOR DAMAGES—FIRES—EVIDENCE —SUFFICIENCY.

1. In an action against a railroad for damages caused by a fire, evidence held sufficient to establish prima facie that the fire was kindled by sparks thrown from one of defendant's locomotives.

Appeal from Circuit Court, Audrain County; H. W. Johnson, Judge.

Action by D. W. Wright against the Chicago & Alton Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Franklin Houston and C. C. Madison, for appellant. J. O. Barrow and Fry & Rodgers, for respondent.

GOODE, J.

This is an action for damages caused by a fire alleged to have been set by a locomotive of the defendant railway company. The fire consumed a considerable stretch of hedge fence on the plaintiff's farm, and fields of standing corn, grass, oat stubble, and some fence posts. It occurred in the fall of 1902. Plaintiff obtained judgment, and defendant appealed.

The only question that demands attention is as to the sufficiency of the evidence offered to prove the fire was kindled by sparks thrown from one of the defendant's locomotives. The foreman of that section of the railroad testified that about noon, and after a passenger train had passed along defendant's track through plaintiff's farm, he observed smoke and fire in one of the fields, and, with part of his men, boarded a hand car and ran to where the fire was. By that time it had burned over a considerable tract. The witness said: "Q. When you got up there, state to the jury what you saw in the way of that fire? A. Well, the fire had made out about two hundred yards from the fence, I guess, and it was spreading out. Q. On which side of the track was the fire? A. On the north side. Q. How close to the railroad track had this fire burned? A. Well, it was burning right along the fence when I got up there; along about the right of way fence; probably on the other side; more on the inside. It seemed to be burning along slowly on the fence there. Q. It was from the southwest—the wind? A. Yes, sir. I didn't pay much attention to the fence. I went on to the fire. I didn't notice very close. Q. What kind of ground was this it was burning on where it started there? A. It started in— I think it was mostly grass and stuff right in where the hedge had burned out, and probably quite a good deal of undergrowth along there. The time I got there, it had reached out—it was into the cornfield and stubblefield—but I could see from where it started that it started about that point where there wasn't any corn. Well, where the fire started there wasn't any corn, I think, or anything else; just wild grass. There wasn't anything; just a small patch of flat ground in there. Q. How long after you got to the fire was it that Mr. Wright came down there? A. Well, it must have been thirty minutes, I reckon, anyhow. Q. How much? A. Thirty minutes. Q. Along the railroad track where you first saw it burning, there was dry grass along there, was there? What kind of stuff was on the ground? A. Well, there was some grass. Q. Had the growth on the right of way been mowed down? A. Yes, sir. Q. Was it laying there? A. I think it had been burned off. Q. You are not sure about that? A. I would not be sure about that; no, I wouldn't. Q. And you say where you first saw it there under the fence was dry grass? A. The fire was fighting along the fence, like, right close to the fence, or in amongst it; right in close to it, anyway. Q. It was burning back onto the right of way, too? A. Yes, sir. Q. Now, Mr. Burgess, after you started you didn't meet any freight train going up there, did you? A. No; I...