185 Mo. App. 432 | Mo. Ct. App. | 1914
The plaintiff recovered judgment in this case for $5200; because of the alleged destruction of his mill by fire communicated to it by one of defendant’s locomotive engines. The only error complained of by appellant is in the instructions given for
The point contested at the trial was as to whether the fire destroying the mill was communicated thereto by this passing locomotive or originated in some other manner unknown. No other- origin of the fire is suggested. The plaintiff’s evidence tends to show that the wind at the time the fire started was blowing in a southerly direction and would, therefore, carry the burning cinders thrown out by the engine towards this mill. The defendant’s evidence shows -the wind was blowing towards the north and wopld carry such cinders away from the mill. Most of the evidence of both parties was directed to this point. The appellant states its position thus: “There was a sharp conflict in the evidence. If plaintiff’s witnesses were believed, the most that can be said is that plaintiff made a prima facie ease. If the witnesses for defendant were believed, the fire could not have been communicated to the mill by an engine on defendant’s railroad. This was therefore
All the instructions asked by defendant were given,. and, as indicating its views of the issues presented, told the jury that: “Before you can find for the plaintiff you must find and believe from the evidence introduced before you that the mill burned, and that the fire was communicated by a locomotive engine in use upon the railroad of defendant, and unless you so find your verdict must be for the defendant,” and that the burden was on the plaintiff to prove these facts.
The instructions given for plaintiff, which are criticised, are these:
“2. The court instructs the jury that in order to entitle the plaintiff to recover it is not necessary to prove by direct evidence, that the fire which destroyed his property was communicated thereto by an engine being operated on defendant's railroad track through Hoberg but if the jury is reasonably satisfied from all ■the facts and circumstances detailed in evidence that the fire was communicated to plaintiff’s said property by such engine then you ought to find a verdict for the plaintiff. ’ ’
“3. Even if the jury shall find and believe from the evidence that the windows or any of them in the upper story of the plaintiff’s mill were left open by the plaintiff, if the jury also find that the fire which burned plaintiff’s said mill caught from sparks that fell inside the same through said windows, so left open, from a locomotive being' run and operated on the de*437 fendant’s railroad, then the fact that said windows were left open by the plaintiff will not defeat his right to recover, but you should find a verdict for him for the full, reasonable value of the said mill and its contents, if said mill and contents were completely destroyed. ’ ’
“4. The court further instructs the jury, that the fact plaintiff may have had insurance upon the property in question and that he thereafter received certain moneys on account of the said insurance, such amount so received by the plaintiff, if any, cannot go to diminish the amount of the plaintiff’s claim. And if you find the said mill and its contents was set on fire by sparks communicated thereto from a locomotive being operated on defendant’s railroad, defendant is liable to plaintiff for burning said mill and its contents, and if you so find you should find for the plaintiff and allow him the full amount of the injury done to his property without considering and without regard to any amount of insurance money he may have received. ’ ’
Both the second and third instructions are criticised because assuming as true controverted facts, to-wit, that the mill was destroyed by fire and that it was owned by plaintiff. These, however, are not controverted facts on this .record — they were proven and not controverted by any evidence. Defendant’s witnesses testified to the destruction of the mill by fire just as positively as did plaintiff’s; and, after plaintiff proved his ownership of the mill, the defendant assumed that fact as being true and examined its own witnesses as to the circumstances of the burning of “Price’s mill.” It is not error to assume as true a fact about which there is no conflict in the evidence, or which having been once proved the parties thereafter treat as being true. [Bertram v. Railroad, 154 Mo. 639, 654, 55 S. W. 1040; Stanley v. Railroad, 112 Mo. App. 601, 609, 87
The third and fourth instructions, above quoted, are criticised as raising issues not presented by' the pleadings. It is true the defendant did not plead as a defense the negligence of plaintiff in leaving open the windows of the mill with easily inflammable materials near the same. This fact came into the case in this way: The plaintiff naturally and properly proved these and other facts to show that it was possible and probable for the mill to take fire from the sparks thrown by the passing engine. On cross-examination, the defendant asked questions and elicited answers calculated to impress the jury that it was largely plaintiff’s own fault in doing this that the mill was burned. As to plaintiff collecting insurance on his burned mill, that was injected into the case under defendant’s answer alleging that plaintiff held a policy of insurance on the property providing that on payment of the same the insurance company would become subrogated to plaintiff’s rights against third parties, and that plaintiff had in fact assigned his rights to the insurance company and, therefore, such company was a necessary party plaintiff. This defense was proven only to the extent of showing the insurance of this property and its payment to plaintiff in an amount much less than the value of the property as sued for here. . It is apparent, therefore, that these collateral issues were largely, if not wholly, injected into the case by defendant’s submarines.
That the facts thus put before the jury do not constitute defenses to this action and that the instructions are correct declarations of law to that effect, is not questioned. Railroads are, by statute, practically insurers of property along their right of way against destruction by fire communicated by their locomotives; and it does not change their liability because the owner
It is generally true that the instructions should not broaden the issues made by the pleadings or present issues not raised thereby. This general rule, however, has its qualifications. The jury is not supposed to know, and in practice does not in fact know, the issues raised by the pleadings, except in the most general way, when viewed from a legal standpoint. To them all the evidence introduced, unless excluded by the court, is to be considered as having a bearing on the case. It is, therefore, proper to limit, explain and declare the legal effect of particular evidence by the instructions. “It is always proper for the court to declare to the jury the legal effect of the facts in proof. The very purpose of instructions is to advise the jury as to the legal effect of the evidence.” [Tyler v. Hall, 106 Mo. 313, 323, 17 S. W. 319.] “To group together a series of facts, of which there is evidence, and tell the jury that such facts, if shown, will or will not constitute fatal negligence, is not error.” [Fleisch v. Ins. Co., 58 Mo. App. 596, 607; Wells v. Electric Co., 108 Mo. App. 607, 613, 84 S. W. 204.] Nor can instructions of this character be condemned as an improper comment on the evidence.
We hold that these instructions were proper under the facts of this case and, the case having been properly tried, the judgment of the trial court is affirmed.
