| Mo. | Mar 16, 1897
IN DIVISION TWO.
This is an action brought by plaintiff for damages caused by the destruction by fire of nursery stock, the property of plaintiff, alleged to have been set out by an engine or engines of, or operated by, defendant upon its railroad.
The petition contains two counts for injuries to the property, occasioned at different times, the causes of action being bottomed upon the provisions of sections 1 and 2, of an act of .the General Assembly of the State of Missouri, entitled “An act to establish the responsibility of railroad corporations, companies and persons owning or operating railroads, for damages by fires communicated by locomotive engines. ’’ Approved March 31, 1887, E. S. 1889, sec. 2615.
The petition alleges that the defendant was a railroad corporation and owned and operated a railway-through Laclede county, Missouri, in March and April, 1888; that at that date it operated and ran a locomotive engine and did “scatter coals, sparks, and brands of fire from the locomotive engines along the right of way of defendant” setting out a fire causing the damages alleged.
It does not allege any negligence on the part of defendant in operating its road, or in the management of its cars or locomotives.
The answer to both counts was a general denial, and as a further defense averred that the alleged causes of action as set out in the different counts in the peti
As a further defense to both counts, defendant averred that the alleged causes of action were founded upon the act of the legislature above named, which “is illegal, unconstitutional and void, in that it denies to the defendant the equal protection of the laws, contrary to the provisions of section 1, of article 14, of the amendments to the Constitution of the United States; and defendant further avers that said law is illegal, unconstitutional and void in this that it deprives the • defendant of its property without due process of law, contrary to the provisions of article 5, of the amendments to the Constitution of the United States; and defendant further avers that said law is illegal, unconstitutional and void-in that it impairs the obligations of a contract theretofore made between the State of Missouri and the defendant by the terms and provisions of which it was agreed that said defendant might and could use fire for the purpose of generating steam to propel locomotive engines and cars attached thereto, .and be responsible only for the negligent or careless use thereof, and that it would so amend said agreement as to impair the rights of the defendant thereunder, and is contrary to the provisions of article 1, section 10, of the Constitution of the United States.” For a further defense defendant alleged that the property described in the petition (nursery trees) was not capable of being insured, and therefore the act did not apply; that it was guilty of no negligence, either in the construction, repair, management, or operation of the engine that it was alleged set the fire, and charged con-
At the trial plaintiff introduced evidence tending to show that the fire was set by an engine on defendant’s road; also evidence of the amount of damages sustained by him; no evidence was offered of any negligence on the -part of defendant either as to the construction of the engine, its equipment with improved appliances, its operation at the time of the fire, or that defendant failed to provide proper apd competent men to operate it. The only ground of liability proven was the mere fact of the setting of the fire.
The trial resulted in a verdict and judgment for plaintiff in the sum of $400, from which defendant appealed.
The only points urged by defendant for a reversal of the judgment are:
First. The unconstitutionality of the statute under which the action was brought.
Second. Said act, if valid, only makes the fact of the injury prima facie evidence of negligence.
Third. Said statute does not authorize damages for property upon which plaintiff could not have obtained insurance.
Fourth. Because it is claimed that the evidence showed that plaintiff was not the owner of the property destroyed.
As to the first three propositions they were all decided adversely to the contention of defendant by this court in the ease of Matthews v. The St. Louis & San Francisco Railway Co., 121 Mo. 298" court="Mo." date_filed="1894-03-24" href="https://app.midpage.ai/document/mathews-v-st-louis--san-francisco-railway-co-8011286?utm_source=webapp" opinion_id="8011286">121 Mo. 298, by an elaborate and exhaustive opinion by Gantt, J.,' concurred in by all of the members except Sherwood, J., in which all of the authorities were reviewed. We have no reason to doubt the correctness of that opinion, nor
As to the contention that plaintiff was not the owner of the property damaged or destroyed, it is not borne out by the evidence, which showed that although the nursery stock was being grown upon land of which he was not the owner, but the lessee, he was, nevertheless, the owner of the stock, which was not a part of the realty, as it was planted with the understanding that it was to be removed at will by him whenever large enough for transplanting.
The judgment is affirmed.
IN BANC.
The foregoing opinion of Bubgess, J., filed in division number 2, December 4, 1894, is adopted as the opinion of the court in lane.
In accordance therewith the judgment of the circuit court is affirmed.