139 Mo. App. 456 | Mo. Ct. App. | 1909
This is a suit to recover damages for loss sustained by plaintiff by the burning of his mill and electric plant, alleged to have been set on fire by sparks from one of defendant’s locomotive engines. The plaintiff obtained judgment from which defendant appealed.
As the appellant has taken his appeal upon the sole ground that the respondent was not entitled to recover under the proof, it is necessary to examine all the material evidence in the case for a proper determination of that question.
There is no question that the fire occurred about nine o’clock a.m. June 27, 1907, and that the property mentioned was entirely destroyed by fire. The building was located in the town of Maitland, Missouri, fifty feet and four inches from the line of appellant’s railroád track. The depot is situated on the west side of the track, which after leaving the depot curves to the southwest and is about fifteen hundred feet from
No one suav how the fire started, so it is a matter to be inferred from the evidence, if the appellant is to be held liable. As the respondent was the only person in and about the building just previous to its discovery the case depends largely upon his evidence. He stated, that the line of the railroad extended in a semicircle from the depot and then in a southwesterly direction past his building which faced the railroad to the southwest; that there were four doors and three windows on the south side facing the track; that there was an opening in the window of the upper story on the south side about ten by eight inches where a pane of glass had been broken a few weeks previously; that the. weather was dry; that there was chaff scattered on the upper floor near this opening and dust and cobAvebs in the room, also some sacks and lumber; that he went to the building on the morning of the fire about fifteen minutes after five o’clock; that he went in and got some feed, and then went through and milked his cow on the other side of the railroad track, and then came back and through the building again and then to his breakfast; that one Frank Ross had been in charge of the machinery until midnight the night before after which no,one was in charge; that he returned to the building about seven o’clock and remained there until ábout nine fifteen o’clock; that he during this time Avent through the building, first to the boiler-room to see the condition of the fire and found that it was banked, and in good condition, and he did not disturb it; that he examined the condition of the furnace and that everything was all right and the fire well
There was evidence offered on the part of defendant the tendency of which was to show that within a very-few minutes after the train passed the building was burning rapidly and before it could have been started by a spark from defendant’s engine.
The argument of appellant is that there is no evidence going to show that a spark emitted from the engine going downhill could or did throw sparks a distance of fifty feet, and upward thirty-five feet from a level of the said roadbed, so as to enter the broken pane of glass in the second story of the building. In estimating the height we must make allowance for about ten feet, the distance from the level of the track and the top of the smokestack.
As we have seen, the engine when it left the depot was throwing sparks as high as the tops of the telegraph poles and that when it came near respondent’s mills it was throwing them so as to reach the Window in the first story of the building fifty feet away. If respondent is to be believed, which was a question for the jury, sparks were carried that distance and height unless we are to conclude that it was an impossibility.
Appellant’s position is based mostly on- two decisions one by the St. Louis Court of Appeals and the other by the Supreme Court. In the first mentioned the court said: “In this case we face not only a lack of direct evidence to show sparks from the engine that was heard to go by after midnight, set fire to decedent’s house, but a lack of direct evidence to show sparks escaped from it. The precise question for decision therefore is: “Is it so generally known to person of average intelligence that a locomotive drawing a heavy load on an ascending grade throws sparks or cinders fifty feet away and hot enough to ignite the roof of a house
There is a marked difference in the facts in the two cases in the St. Louis Court of Appeals, and the one under consideration, and a much stronger case was made out in this than in that of Campbell v. Railroad, supra, where the plaintiff was permitted to recover.
Here the evidence shows that the engine in question did throw sparks to a great height and was throwing them at the time it passed plaintiff’s building. There was a brisk wind blowing at the time, that carried cinders to the plaintiff’s building a distance of fifty feet, but there is no direct proof that any were carried so high as the broken pane of glass in the second story thereof. That sparks may have been thrown to such an elevation may be implied from the • circumstances. It is true that under ordinary conditions, without the interference of the wind, sparks emitted from any engine, however prone to throw sparks, would not throw them to any great distance because their course would
The probability is that the fire could have been communicated in no other way than from sparks emitted from defendant’s engine unless it was set by plaintiff himself. According to his statements he had just previous to its discovery examined the building and there was no evidence of fire anywhere except in the furnace Avhich had been banked. The mill and the electric machinery were not in operation and had not been since midnight. But it is not for the court to say that plaintiff committed perjury as the jury was the sole judge of his credibility and as they evidently believed he told the truth that was an end to the matter.
It is probable that a live spark was carried by the force of the wind to the upper story and that it entered through the opening and fell upon the chaff or other combustible material and ignited the fire that consumed the building. The evidence in the most positive character tends to prove that the fire could have originated in no other manner. The process of reasoning by excluding every other means by which the fire could have been started, tends to support the theory that it was by means of sparks thrown out by defendant’s engine.
This case seems to fall within the rule that where the evidence shows no more than a probability that the source of a fire was a railroad engine, is sufficient to submit to the jury. [Lead Co. v. Railroad, 123 Mo. App.
For the reasons given the cause is affirmed.