| Mo. | Apr 15, 1879
It appears from tbe testimony introduced by the plaintiff, that between eleven and twelve o’clock of each day a freight train passed his farm, going west, and that, on the 28th day of October, 1875, just after the train passed, at the time named, a smoke was observed in an adjoining-field, about 90 feet distant from the railroad track, which immediately kindled into a flame which spread to the plaintiff’s farm, three-quarters of a mile away, consuming his fences, out-buildings and farm products. The present action was brought to recover the value of the property thus destroyed.
It is a matter of inference only that the fire was kindled by sparks escaping from the defendant’s engine. There was no direct testimony to that effect. It was not even shown that any sparks escaped from defendant’s engine as it passed. As there is no natural and necessai’y connection between the running of the engine and the kindling of the fire, it would seem that some testimony should have been
W. H. Selby,, a witness for defendant, testified that he resided at Moberly; that he was employed by the defendant as superintendent of machinery, and that it was his duty to have all machinery on defendant’s road kept in good condition; that the town of Moberly is about thirty miles west of the farm of the plaintiff,-and that defendant’s machine shops and round house were there; that all engines running west by the farm of plaintiff are taken into the round house at Moberly as soon as they arrive, and carefully examined, and a record made of their condition; that on the 28th day of October, 1875, all of defendant’s engines were provided with the best contrivances to prevent the -escape of fire, then in use or known. Thereupon the defendant’s counsel asked the witness the following questions : What was the condition of all defendant’s engines arriving in Moberly from the east, on the 28th day of October, 1875 ? What was the condition of the smoke stacks, netting and all the apparatus and contrivances to prevent the escape of fire?” ' To these questions the plaintiff objected for the reason that they were irrelevant and incompetent, and for the further reason that the defendant should confine its proof to the particular engine from which the fire escaped, and the court sustained said objections and would not permit the witness to answer. In this ruling, we are of opinion, that the circuit court committed error. If, at the time this testimony was offered, it had appeared from the testimony in the cause that any particular engine had emitted the sparks which occasioned the fire, it would Lave been entirely proper for the court to have confined
The testimony offered was, in our opinion, both competent and relevant, and should have been admitted. Nor was the evidence sought to be elicited matter of opinion about which experts alone could testify. • It was a question of fact and a matter of observation, about which the jury, themselves would have been as well qualified to foxun an opinion, if the flues and netting had been befoi’e them, as those persons who were familiar with their construction and accustomed to theix1 use. Moreover, no objection was made to the capacity of the witness to answer the questions px’opounded. Nor was the absence of this testimony supplied by anything subsequently admitted. The witness after-wards testified that the exxgine ■ which it was supposed originated the fire was numbered 85. Another witness testified that this engine was in pex-fect condition on the day named ; but he also testified that it reached Moberly at ten o’clock a. m., nearly two hours before the fire. According to the testimony of this witxxess, some other engine must have passed the plaintiff’s premises between eleven and twelve o’clock. So that it was left in doubt what engine occasioned the damage, and the defendant was,
Reversed.