14 Mo. App. 86 | Mo. Ct. App. | 1883
delivered the opinion of the court.
Plaintiff alleges in her petition “ that she is a freeholder owning lands in the county of St. Louis, and that defendant is, and was on September 5, 1881, a corporation owning and operating railroads under an act of the General Assembly of the State of Missouri, entitled an act to incorporate the Pacific Eailroad Company, approved March 12, 1849, and subsequent acts amendatory thereto. That the line of defendant’s road forms the southern boundary of her lands ; That, on said 5th of September, defendant, whilst running
1. The defendant at the trial objected to the introduction of any evidence, on the ground that the petition does not state facts sufficient to constitute a cause of action, and because its allegations are too vague and uncertain. We think that the objection was properly overruled. It is enough that the substantial averments are there. All formal defects are waived, when defendant fails to demur and answers over. The petition is inartificial. It is objected that it nowhere •alleges in direct and positive terms that the property destroyed was the property of plaintiff. But we wil l not,after a trial on the merits, turn the plaintiff out of court because the word “ the ” in a petition is written instead of “ her,” when there has been no demurrer, and the meaning of the pleader is obvious, and there has been no surprise, and defendant has not been prejudiced. As to the objection to the allegation as to the management of defendant’s right of way, that it is the statement of evidence, or of a conclusion ■of law, and not of a fact, we see nothing in it.
2. It is objected that the incorporation of defendant is denied by the answer, and that it was not proved on the trial. Defendant having appealed and answered, is estopped to deny its own existence. Wilthouse v. Railroad Co. 64 Mo. 523. If it claims that it is improperly sued as the
3. The plaintiff introduced evidence tending to show that the property destroyed consisted of fencing on her farm adjoining the railroad company’s fence, and the timbers of a barn on her premises, blown down before the fire, and that it was of the value stated in the petition, and was in her possession at the time of the fire ; that the fire originated on the defendant’s right of way; spread then to Ead’s property, and thence to that of plaintiff, at a distance of two hundred yards from the track; that the defendant’s right of way had been mowed a month before the fire, and that the grass and weeds had been left there to dry just as they fell u and that the fire burst out on defendant’s right of way in this dry stuff just after a locomotive of defendant’s passed ; and that no grass or rubbish had been thrown from plaintiff’s premises on to defendant’s right of way.
On behalf of defendant, the engineer of the train which passed just before the fire, testified as to his skill and competency, and that the fireman of the locomotive in question was also skillful and competent; that they ran the engine carefully past plaintiff’s place at the time spoken of by plaintiff’s witnesses ; and that the smoke stack and smoke arrester on the engine at the time were the best known in use to prevent the escape of fire. The smoke stack inspector of defendant testified that the engine in question was examined by him, and that the smoke stack and appliances for preventing the escape of fire were in good order, both just before and just after the fire in question. The section foreman of defendant testified that large quantities of dry grass, weeds, and brushhad been thrown on defendant’s right of way from adjoining lands, and that the fire started in these weeds, burned defendant’s fence, and spread thence to the adjoining lands.
The court, at the instance of plaintiff, instructed the jury that “ if they believe that fire was set out by the engine of defendant, and further believe that rubbish and dry grass was permitted by defendant to accumulate and remain upon their right of way, they shall find for plaintiff, unless the evidence has also shown that plaintiff’s negligence equally contributed to the origin of the fire, or that defendant was then using the best appliances kuown to prevent the escape of fire from its engine.”
At the instance of defendant, the coui’t instructed the jury: “ That if the evidence has shown the defendant’s locomotive, complained of in this case, was in good repair, and supplied with the best appliances to prevent the escape of fire then known to be in use, and that it was at the time in charge of competent and careful men, who were exercising care and caution at the time, then the plaintiff must show other and further acts of actual negligence on the part of defendant;” and: “If the evidence has shown that plaintiff permitted dry grass and weeds to accumulate and remain on her land adjacent or adjoining defendant’s right of way, and that this was an inducement as to the origin and spread of the fire, then plaintiff ivas guilty of such contributory negligence as to equal the negligence of defendant in allowing dry grass and weeds to accumulate and remain on its right of way, and if this has been proven to the satisfaction of the jury, there can be no recovery.”
The court also gave an instruction, of its own motion, which is not set out.
The evidence that fire burst out amongst dry grass on defendant’sright of way, just after thelocomotive of defendant had passed along, was sufficient to Avarrant the inference that this fire was communicated by sparks from the locomotive. This, and proof that the fire spread to the adjoining
4. It is contended that the instruction given for plaintiff was bad, in this respect, that it did not require the jury to
We think the judgment should be affirmed. It is so ordered.