Young v. Hines

• Decision Date: 07 March 1921
• Citation: 229 S.W. 417
• Parties: YOUNG et al. v. HINES Director General of Railroads.
• Court: Missouri Court of Appeals

229 S.W. 417

YOUNG et al. v. HINES Director General of Railroads.

Kansas City Court of Appeals. Missouri.

March 7, 1921.

Rehearing Denied April 4, 1921.

Appeal from Circuit Court, Livingston County; Arch B. Davis, Judge.

"Not to be officially published."

Action by David M. Young and another against Walker D. Hines, Director General of Railroads. Judgment for plaintiffs, and defendant appeals. Affirmed.

N. S. Brown, of St. Louis, W. W. Davis, of Chillicothe, and S. J. & G. C. Jones, of Carrollton, for appellant.

O. C. Bigger, of Laclede, for respondents.

BLAND, J.

This is a suit brought under section 9954, R. S. 1919, to recover the value of a dwelling house and outbuildings belonging to plaintiffs, which were destroyed by fire on August 4, 1918. There was a verdict for plaintiffs, and defendant has appealed.

The fire was alleged to have been communicated by sparks or hot cinders escaping from one of defendant's locomotives. The fire was first communicated to a combined icehouse and garage, from whence it spread to the other buildings in close proximity, which were destroyed.

The property was situated in Fountain Grove, Linn county, Mo. Defendant's railroad in passing through said town runs in a northwest and southeast direction. For something over a mile on either side of the town its track is practically level. The premises of plaintiffs abut on the right of way on the northeast side thereof. The northwest corner of the icehouse was 88 feet from the track. The building was constructed of one-inch native lumber, boxed on the outside with boards running perpendicularly on the south and west sides, with batting nailed over the cracks at the joints of the hoards. The icehouse was lined with native lumber nailed to the inside of posts. The space between the lining and the outer wall was about 10 inches and was filled with sawdust. It was 12 feet from the ground to the roof of the icehouse, and the whole, including the roof, was covered with rubberoid. Some time before the fire the batting covering a crack in the northwest corner of the icehouse had fallen off, leaving exposed a crack from 1 to 1½ inches in width, running from the ground upward about a foot. A bushel of sawdust had rolled out and was lying on the ground outside just below the exposed crack. The sawdust on the inside was exposed through this crack. The sawdust between the lining and the outside wall and on the ground on the outside was dry. The icehouse was one-third full of ice, and the sawdust where the ice was situated was damp.

Some time prior to the fire a severe drought accompanied by intense heat prevailed, and everything was extremely dry. On the day of the fire there was a high hot wind blowing from the southwest directly across the railroad track toward the icehouse. About 3 p. m. a heavily loaded freight train consisting of about 25 cars came from the northwest and passed plaintiff's premises. The locomotive was puffing heavily and emitting smoke and cinders in large quantities, which were blown toward the icehouse. About an hour or less after the passing of the train the icehouse was discovered to be on fire. The fire was burning at the northwest corner of the icehouse from the ground up. The building was on fire on the outside, between the outside wall and the lining, and in the inside sawdust, and the fire was running up the corner post on the inside of the outside wall. A board was removed at the corner post. This board was discovered to be partly burned. Several buckets of water were poured upon the fire, and it was apparently extinguished in about 10 minutes after it was discovered. At 11:00 o'clock of the same evening plaintiff Minnie A. Young was awakened by seeing a flash of fire, and immediately arose and found "the whole corner of the icehouse was aflame, coming through the cracks; practically the whole building was aflame when I first discovered it." Mrs. Young visited the building about an hour before the second fire was discovered, and saw no evidence of fire. Attempt was made to extinguish the last fire, but it was futile and, as before stated, it consumed all the buildings on the premises.

There was testimony that cinders were known to have been thrown from passing engines and to strike windows of houses in the town farther away from the track than was the icehouse. There was testimony that a man plowing on his farm near Fountain Grove on different occasions had trouble in controlling his team on account of cinders being thrown upon them by passing engines as far as 200 feet away. One witness testified that on the day following the fire and at a point about one-half a mile west of Fountain Grove an engine set afire a field 100 feet from the track under the same conditions of dryness and wind as were present when plaintiffs' property was set afire. The engine that set out the fire that burned plaintiffs' buildings was equipped with a spark arrester which consisted of wire screening of a quarter inch mesh and exhaust steam conveyed to the smokestack. The cinders that passed through the screening were supposed to be extinguished by this steam. There is evidence, however, that engines equipped with such spark arresters had set out fires by sparks.

Defendant first insists that his plea in abatement to the jurisdiction of the court should have been sustained for the reason that plaintiffs resided and the cause of action arose in Linn county, and the suit was brought in Livingston county. General Orders Nos. 18 and 18a, issued in 1918 by the Director General of Railroads, providing that suits "must be brought in the county or district wherein plaintiff resided at the time of the accrual of the cause of action or in the county or district where the cause of action arose," are inconsistent with and contrary to Act Cong. March 21, 1918, § 10 (U. S. Compl. St. 1918, U. S. Comp. St. Ann. Supp. 1919, § 3115¾j), providing:

"Actions at law or suits in equity may be brought by and against such carriers and judgments rendered as now provided by law."

See El Paso v. S. W. R. R. Co. v. Lovick (Tex. Civ. App.) 210 S. W. 283; Pullman Co. v. Uribe (Tex. Civ. App.) 225 S. W. 189.

It is insisted by the defendant that his demurrer to the evidence should have been sustained for the reason that there is no evidence of any sparks being thrown from the engine upon plaintiffs' icehouse, and, if such sparks were thrown, that they were hot enough to ignite the building. It is also insisted that no train had passed immediately before the discovery of the first fire; that the first fire was extinguished, and there is no evidence tending to show what caused the second fire; that the claim that the first fire was set by a passing engine and that the second fire was a breaking out of the first is based on mere speculation.

It is now well established that it is necessary to prove in a case of this kind that the fire was actually communicated to the property by one of defendant's locomotives, and the mere fact that a fire occurred on or near the railroad and destroyed property is of itself no evidence that the fire was started by a railroad locomotive. But this proof of actually setting a fire need not necessarily consist of seeing sparks leave the engine and to fall upon the building; circumstantial evidence is sufficient. Jones v. C., M. & St. P. R. Co., 204 S. W....