113 Mo. App. 642 | Mo. Ct. App. | 1905
— This is a suit for damages for the destruction of plaintiff’s bam and hay therein by fire alleged to have been started by sparks emitted from one of defendant’s locomotive engines. The fire occurred at about 5:30 p. m., October 27,1903, near Lee’s Summit, Mo.
The testimony shows that the barn in question was situated on the west side and about 850 feet from defendant’s tracks which ran nearly north and south'with reference to said barn. No one testified seeing the sparks communicated to the barn. There was evidence that a freight train passed about 4 o’clock p. m.; and other evidence that no such train passed at that time, but that a passenger train passed at 4:13 o’clock. The witness who testified that a freight train had passed at the time stated, testified also that soon thereafter he saw a small fire burning in the grass near defendant’s tracks. No witness saw the barn on fire until about 5:30 o’clock p. m., at which time it had gained considerable headway. Between the railroad track and barn was a field in which were stalks and grass which was burned over to
The contention of appellant is that under the evidence plaintiff was not entitled to recover. If we. consider only defendant’s testimony its position is correct. But we are to take into consideration all the evidence— that of plaintiff as well a,s that of defendant— and if there was any substantial testimony upon which to base the verdict, we are bound by it. And it can make no difference notwithstanding there was much evidence to the effect that the field in question had been burned over before the day in question, and that if defendant’s witnesses are to be believed the fire could not have been communicated at the time claimed by plaintiff. Nor are we to take as conclusive the evidence of defendant’s agents that its engines were in good repair — the netting and appliances in good condition — and consequently its smoke stack did not emit sparks.
The defendant submitted a demurrer to plaintiff’s case which the court overruled. We are cited to numerous cases by defendant as parallel with this to show that plaintiff was not entitled to recover. But in cases of
The chain óf circumstances is as follows: The locomotive attached to a freight train was seen to pass going up grade; in a few minutes a fire is discovered in the dry vegetation along defendant’s right of way; an adjoining field is covered with dry grass and cornstalks; this vegetation is found burned over to within two hundred feet of plaintiff’s barn; within one and one-half hours after the fire was first discovered along the right of way this barn was on fire; and during all the while the wind was blowing from the fire in the direction of the barn. These circumstances all point one way. From them we may infer that the locomotive going up grade emitted sparks which fell upon the dry grass and set it afire, which spread and communicated to the dry material in the field and which fire, driven by the wind which . directed it towards the bam, was driven across the intervening space of two hundred feet to said barn, getting it afire.
That a wind traveling at the rate of seven miles an hour — much less a strong wind — would carry sparks a distance of two hundred feet is a' matter of common knowledge. It was not only probable but it was certain to do so. All the circumstances lead to but one conclusion. It is true that these circumstances might all tend
The case is stronger than in Kenney v. Railroad, 70 Mo. 243 and Torpey v. Railroad, 64 Mo. App. 382, in which cases the court held that the proof was sufficient. The case of Peffer v. Railroad, 98 Mo. App. 291, was Avhere the evidence showed that defendant’s engine could have set the fire and nothing more, Avliich was held sufficient to maintain the action. But it is held that what is probable or even possible may be given in evidence, and its probative force is a question for the jury in arriving at their verdict. Campbell v. Railway, 121 Mo. 349; Matthews v. Railway, 142 Mo. 645. As an original proposition, speaking for myself, I think that what is possible in a given case is entering into an almost limitless field of speculation, and a mere probability Avould be in a less degree guesswork. These cases are cited to show that under any theory of the case predicated upon the plaintiff’s testimony, the verdict is bound to be upheld.
Defendant introduced Avhat would be the evidence of one Joseph Faust, if present and testifying, to the effect that, about thirty minutes before the fire three strangers having the appearance of tramps passed along the public road going in the direction of the barn; that
The court at the instance of plaintiff gave an instruction: “If the jury believe from the evidence that any witness has willfully sworn falsely to any material fact, the jury are at liberty to disbelieve and reject as untrue the whole or any part of the testimony of such Avitness, or accept and believe such parts as they may believe to be true AAdien considered in connection Avith all the evidence in the case.” Instructions of this kind are not applicable unless justified by the conduct of the Avitness or his statement AA'hich indicate that he is knoAvingly testifying to matters that are untrue. Faust’s statement as to Avhat he heard one of the supposed tramps say about their intention to sleep in the barn justified the instruction, as several witnesses AAdio Avere Avith him and could have heard AAdiat Avas said testified that they did not hear anything of the kind spoken. He Avas Avhoily discredited and it Avas proper to call attention to his testimony in the general instruction mentioned.
„ For the reasons given the cause is affirmed.