123 Mo. App. 394 | Mo. Ct. App. | 1907
Plaintiff, an incorporated company, suffered a loss by fire November 21,1903, and seeks compensation from the defendant on an averment that the fire was kindled by sparks emitted by one of defendant’s locomotives. According to the statement of the petition, the property burned was one barn of the value of $2,000, another barn of the value of $1,000, four mares worth $650, two mules worth $300, two- thousand bushels of corn worth $900, one hundred and twenty-five tons of hay worth $1,250, five hundred sacks worth $25, one thousand pounds of mixed feed, worth $900, four hundred bushels of oats worth $120, five sets of harness, worth $75, farm machinery worth $100 and a hog pen,
The court received in evidence a train sheet kept by the defendant company’s Chief Train Dispatcher at DeSoto, and showing what trains passed through Iron-dale on the night in question. This document is said to have been inadmissible. The sheet was identified by the train dispatcher and proved to have been kept in defendant’s regular course of business. We have no doubt jt was competent evidence; but if it was not, its admission did no harm, because the defendant proved the same facts by the crews of the engines attached to the trains which passed Irondale on the night in question.
Counsel for defendant insist the evidence relied on to show the fire was kindled by one of the defendant’s locomotives was insufficient to justify the submission of that issue to the jury; an assignment to which we have given patient study because we are sensible that the evidence is circumstantial and not as satisfactory as positive proof would be. But the question for our decision is: Was there any substantial evidence tending to prove the cause of the fire was a coal or cinder cast out by one of defendant’s locomotives? In dealing with this question we will state the evidence in the phase most favorable to plaintiff, as we are bound to do in view of the jury’s right to accept some parts of the evidence as true in preference to other parts. The weather was dry and the night starlit, with a breeze floating from the east or southeast; that is, from the railroad track toward the barns. The railroad track at that point was on a high bank and nearly level with the eaves of the barns. We
Leaving the facts of the present record and turning to those of kindred cases, Ave find a nearly unbroken current of decisions holding that, in like proof, the question of the origin of the fire is for the jury. We are cited in defendant’s brief'to the opinion in Sheldon y. Railroad, 29 Barb. 226, as an authority, based on facts parallel to those before us, against the submission of the issue of this defendant’s liability to the jury. In said Sheldon case the fire was not discovered until an hour and seventeen minutes after the locomotive had passed, nor was it
“The fourteenth and fifteenth prayers were also properly rejected. There is a well-recognized distinction in regard to the degree or quantity of proof in the trial of civil and criminal causes. In the latter, the presumption of innocence is so strong, that the law in favor of life and liberty requires the fact of criminality to be established, to the exclusion of every other reasonable hypothesis; or, in other words, to a moral certainty. In mere civil disputes, however, where no violation of the law is in question, and no legal presumption operates in favor of either party, the preponderance of probability, due regard being had to the burden of proof, may constitute sufficient ground for a verdict. In this case it is not alleged that the property was willfully burnt*402 by the defendant, and although the plaintiff was bound to prove to the satisfaction of the jury, that the fire was occasioned by the negligence of the defendant, yet he was not bound to prove this beyond what is termed a reasonable doubt, as applied to the trial of criminal causes.”
That evidence showing no more than a probability that the source of a fire was a railroad engine, is sufficient to submit to the jury, was decided, in effect, in Campbell v. Railroad, supra; Sheldon v. Railroad, 14 N. Y. 223; Field v. Railroad, 32 N. Y. 339; Railroad v. Richardson, 91 U. S. 470; Smith v. Railroad, 63 N. H. 25, and numerous other cases. But of course the probative force of the' evidence must be strong enough to induce a belief in the minds of the jury that the fire in fact originated from a locomotive, not merely that it might have done so. The evidence ought to warrant more than a conjecture as to the source of the fire— ought to suffice to induce a conclusion regarding the matter in the minds of reasonable men. [Atchison, etc., Railroad v. Mathews, 58 Kan. 447; Gibbs v. Railroad, 104 Mo. App. 276, 78 S. W. 835.] Hence the precise question in this connection is, whether it is so apparent that the testimony introduced by plaintiff was not adequate to produce a reasonable belief that one of defendant’s engines started the fire, instead of merely leaving room for a surmise that it did, that the court below ought to have refused to leave defendant’s liability to be determined by the jury. After reflecting over this matter and reading relevant decisions, we find ourselves unable to yield assent to defendant’s proposition that plaintiff’s evidence went no further than to show a spark from one of defendant’s engines might have caused plaintiff’s loss. We are not convinced the fire was communicated from an engine; but are even less convinced that a reasonable mind could not have reached the conclusion that it was on the proof offered. The weightiest facts are that it
“In a very large number of cases there is no direct evidence of the origin of the fire. A train of cars passes along the track, and within a short time thereafter property on adjacent premises is discovered on fire. The question then is' what facts can be exhibited to the jury from which they may properly attribute the origin of the fire to the railroad company? In this connection it has been held that evidence that immediately upon or soon after the passing of the defendant’s train the fire started, and that there was no fire on the premises before, and no other apparent cause for the fire, warrants an inference of fact that the fire was caused by the defendant’s train. And it has been held this inference may still be indulged though the defendant’s witnesses testify that the engine was skillfully handled.” [13 Am. and Eng. Encv. Law, p. 513.]
Another treatise of merit thus states the law and supports its text by many cases:
“As there are few, if any, cases where persons see the fire directly communicated, proof of the communication must necessarily be more or less circumstantial. But, even though circumstantial evidence is sufficient to establish liability, where the evidence is such that it is a mere conjecture as to whether or not the company set the fire it is proper to nonsuit the plaintiff. Where, however, it is shown that there was no probable cause for the' fire except the railway locomotives it may be sufficient to fasten it upon the company. It is not necessary that the plaintiff should produce evidence to exclude every other*404 possible cause of tbe fire. Tbe plaintiff is not always required to show that any particular engine set out tbe fire, and evidence that other engines of the company, similar in general construction to that supposed to have set out the'fire, set out fire about the time the injury occurred has often been held admissible. . As tending to show that the fire was set by the defendant, it has also been held competent to prove that at various times before the fire occurred the engines of the company set fires along its line in the vicinity. Proof that fires were set along the line of the railway is not admissible unless it is shown that they were set by the railway company. But it has been held competent to show that coals of fire had previously been dropped or been found on the track at or near the place where the injury occurred.” [3 Elliott, Railroads, sec. 1243.]
A leading case on the subject is Smith v. Railroad, L. R. 6 C. P. 14. The property burned was a cottage which stood outside the railroad right of way, beyond a stubble-field, on a highway running parallel to the railroad and some two hundred feet distant from the latter. The Aveather Avas dry; grass had been trimmed on the right of way and piled in small heaps, and other fires had been set as trains passed. The particular fire caught in the grass, but whether in a pile of trimmings or not, was unproved. It started shortly after the passage of a train and extended across the stubble-field to the plaintiff’s cottage. One question Avas whether, on these facts, the jury were entitled to find the fire started from sparks cast off by a locomotive. Counsel for the railroad company suggested that it might have started from a match, the ash of a cigar dropped from a car window, or from a coal from a pipe smoked by some workman on the right of way. In the recital of the facts is the statement that there was no evidence to show defendant’s engines were improperly constructed or that the fire originated
‘‘The question for ns is how all this occurred? There is some doubt how the fire originated, but there was ample evidence for the jury, which would have- been rightly left to them, that it originated from sparks from the engine falling on the dry heaps of trimmings and thence extending to the hedge and stubble-field.”
The difficulty the court encountered was not in finding the fire started from sparks from the engine, but whether or not the railroad company was negligent. The fact of negligence found, was the piling of the trimmings of grass on the right of way. But what we are concerned with is, that the court held there was evidence for the jury on the issue of whether the fire started from a spark thrown off by a locomotive and which fell on one of the grass heaps. This case has been cited frequently with approval by the courts of this country.
In Union Pac. R. R. v. DeBusk, 12 Colo. 294, the proof of the origin of the fire was no more than that the burned hay ignited shortly after a train had passed. The court said:
“The evidence was sufficient to warrant the inference that the fire was caused by the defendant’s passing train, as alleged in the complaint; several witnesses testifying in substance to the springing up of the. fire immediately upon the passing of the train, and that there was no fire on the premises before and no other apparent cause for the fire. From the nature and circumstances of such case, considerable latitude must be allowed in the introduction of testimony, and in the drawing of inferences as to the origin of the fire. [1 Thompson, Negligence, 159; Railway Co., v. Jones, 9 Colo. 849; Butcher v. Railroad, 8 Pac. 174.]”
In Hoskinson v. Railroad, 66 Vt. 618, a house, barn and contents were burned, there being no direct evidence as to how the fire started; bnt soon after the passage of
In Carson v. Railroad, 29 Minn. 12, two stacks of hay had been burned, there being no direct proof that they were ignited by an engine. The opinion said:
“The evidence tended to show the fire started in the grass near, and to the leeward of, defendant’s track a few minutes after the train had passed; that there was quite a stiff breeze; that there was no person and no other fire than that of the passing engine in the vicinity at the time. It being a matter of common knowledge that engines do emit sparks which start fires in this way, and there being no other apparent probable explanation of the origin of the fire, we think these facts render it highly probable that this fire was set from the passing engine and fully warranted the jury in so finding.”
In Crist v. Railroad, 58 N. Y. 638 (see also 1 Thomp. & Cooke 435), evidence for plaintiff tended to show there was no probability that the fire was caused otherwise than by sparks from an engine; whereas defendant’s testimony tended to show a probability that it was caused otherwise. Plaintiff was allowed to prove that on other occasions, passing engines had emitted sparks and coals which fell farther from the track than the barn; which evidence was ruled competent and sufficient to uphold a verdict in plaintiff’s favor.
In Torpey v. Railroad, 64 Mo. App. 382, the action was for damages for the burning of a house located forty feet from -the railroad track. The evidence of the origin of the fire was that a train had gone by some fifty minutes before it was discovered and two others ten or
In instructing the jury as to their duty to ascertain the origin of the fire, the court gave all the requests of the defendant, declaring that in order for the plaintiff to recover it must establish, by the gréater weight of evidence, that one of defendant’s engines which passed Irondale on the night of the loss, emitted fire which was communicated to plaintiff’s barns, and unless this fact was so established, the verdict must be for defendant; that if the evidence showed some other cause or some other party set out the fire, the finding must be for defendant; that a verdict could not be found for plaintiff on a mere conjecture as to the cause of the fire, but the jury must find that it was communicated by an engine on defendant’s road while passing Irondale, and the burden of proving this fact by the greater weight of evidence was on the plaintiff; that the evidence to prove the
The court instructed at plaintiff’s instance, that if the jury believed plaintiff was the owner of the two barns and their contents, and the hog pen, and said property was destroyed by fire from one of defendant’s engines, defendant was liable for the damage, regardless of whether it was negligent or not. Complaint is made of the charge as referring the jury to' the petition for the issues, but it did nothing of the kind. The only reference to the petition in the instruction was in speaking of the property as that mentioned in the petition. The main issue in the case was whether or not the fire was kindled from coals from an engine, and this issue was carefully defined and submitted in all the instructions. In another instruction the court told the jury that if the issues were found for plaintiff, its damage should be in such sum as they believed the barns, their contents and the hog pen were reasonably worth on the night of the fire, not to exceed the sum sued for, to-witj $6,479. This instruction is complained of because it did not set out the different items of property. The proof was conclusive that all the property sued for was destroyed and there was testimony as to the value of every portion of it. The verdict was for a round sum instead of separate values for each article, but this is no ground of objection. These instructions are almost copies of two approved by the Supreme Court in Mathews v. Railroad, and we think there is no merit in the criticism of them.
The judgment is affirmed.
