37 Mo. 287 | Mo. | 1866
delivered the opinion of the court.
The plaintiff produced evidence showing that in the spring of 1864 his orchard and fences had been destroyed by fire, and .the amount of the damage; that a short time after a train of cars had passed on the railroad, going west, a fire was seen in the dry grass among locust-trees standing thick along the orchard, and some forty or fifty feet north of the railroad ; and that a high wind blowing from the south carried the fire directly into the orchard; that, at the same time, two small boys were engaged in burning piles of cornstalks in several places to the south of the railroad and orchard, one of them within about sixty yards of the railroad ; that no one actually saw how the fire originated, but a son of the plaintiff, who was plowing in a field at some distance, out of sight of the orchard, and saw the fire soon
This being substantially the state of the plaintiff’s case, the defendant’s counsel asked the court to instruct the jury to find for the defendant. The court declined to pass upon the instruction, unless the counsel would then submit the case to the jury. It was decided in Clark’s Adm’x v. Han. & St. Jo. R.R. Co. (36 Mo. 202) that it was proper for*the court to pass upon such instructions when asked at the close of the plaintiff’s evidence.
On the part of the defendant, the evidence showed that prior to 1861 the company have used wood-burning engines, with wire gauze bonnets, or spark catchers, on the chimneys, but that since that year they had used instead coal-burning engines with straight chimneys, and with sub-treasuries, or spark receivers, (being an extension of twenty-one inches in the smoke box,) for the purpose of arresting sparks and cinders; that the coal burning-engines were safer against damage from sparks than the other ; that they emitted no sparks unless worked hard, or the receiver was full; that the engineer could tell when the receiver was full; that to the east of this farm the grade, going west, was slightly ascending, and that nearly opposite the house and orchard it began to be strongly descending ; that little steam was used in approaching the farm; that it was shut off altogether about opposite the house, and that the engines passed through the
The defendant also offered to prove that the engineers employed on that division of the road were skilful and careful men, and that the builder of the engine used on this occasion was a skilful mechanic. This evidence was excluded. We think it might properly have been admitted.
The defendant excepted to the ruling of the court allowing witnesses to give their judgment as to the value of the trees destroyed, without first stating that they knew their value. We see no material error in this.
The main question here is nearly the same, whether considered as arising upon the instruction which was refused for the defendant at the close of the plaintiff’s evidence, or upon the third instruction given for the plaintiff when the case was submitted to the jury. The defendant’s evidence tended to show that the change of engines, made in 1861, had been rather for the better than the worse, in respect of danger from sparks, and to strengthen the possibility that the fire might have been communicated from the burning cornstalks rather than from the engine. We cannot say that there was any evidence before the jury which tended to show actual negligence on the part of the defendant, and the plaintiff was not entitled to recover, unless the proposition can be maintained, that from the mere fact that a fire was set by sparks from the engine, and damage done, “the presumption is that said fire escaped by the negligence óf the defendant or its agents.” The instruction seems to propound a conclusive presumption of law in reference to the issue, and a kind of disputable presumption of fact in reference to the matter
There are no statutes in this State which declare that any such state of facts shall constitute a presumptive or prima facie case of liability, nor does this belong to a class of cases in which there are any special presumptions of law or fact arising out of the peculiar relations of the parties or privity of contract. Presumptions of fact are mere arguments át best, and are only such as would warrant a jury in inferring the fact of negligence from the other facts proved, in the ordinary course of reasoning, according to the natural and proper relations of things, and the common sense and experience of mankind. (1 Greenl. Ev. §§ 44, 48.) It is not apparent how, by any rational process of thinking, a jury could draw the conclusion, from the facts proved here, that the defendant has been guilty of actual negligence. The more reasonable presumption would rather seem to be that the fire had occurred by accident or mischance. On the other hand, there would seem to be like ground for a presumption equally strong that the fire had been set by sparks from the burning cornstalks, and that there had been negligence on the part of the plaintiff.
The allegation is not merely of a fire and damage by sparks from the engine, but that the whole thing was caused by the negligence of the defendant, and on this the issue is taken. The negligence is thus made to be the substance of the issue. It is the whole ground and very gist of the action, and it must be proved as laid. It is a familiar rule that the proofs must correspond to the allegations. It is not enough that a part of the facts involved in the inquiry are made to appear. The whole issue must be proved, and the burden of proof is on the plaintiff. If he failed to prove the whole issue, he comes short of making out a prima facie case, and the jury should be instructed to find for the defendant.
Negligence, in itself, is a matter of fact, and where it is involved in the issue, and there is any evidence tending to
But in all that class of cases where no statute interferes, and no peculiar relation or privity of contract exists, and the parties stand in the position of strangers, with only thdSe rights and mutual obligations which belong to all neighbors and persons alike, in the use and enjoyment of their own property, and in the conduct of their own lawful business, and negligence is the ground of action, the burden of proof is always on the plaintiff; the fact of negligence must be proved, and there is no such thing as a presumption of negligence as a matter of law without proof of the fact, and no other presumption of fact than such as belongs to the proper force and the rational weight of the evidence, of which, when there is any, the jury is to judge, under the instructions of the court. This rule was applied in the case of Schultz v. Pacific R.R., 36 Mo. 13.
There does not appear to be any well grounded difference in the principles and rules applicable to these particular cases of accident and damage by sparks from railroad engines. Reasonable care, skill, diligence and foresight only are required; that is, such as might be expected of careful, skilful and prudent men in like situations and circumstances; and the same is required of both parties alike. The old maxim, “Sic utere tuo” etc., applies equally to both ; and they are alike responsible for ordinary negligence or want of reasonable care, skill and prudence. (Vaughn v. Menlave, 4 Scott, 244; Beers v. Housat. R.R. Co., 19 Conn. 566; Balt. & Susq. R.R. Co. v. Woodruff, 4 Md. 242.) There are not only different degrees of negligence in different classes of cases, but it is always in some measure relative to the nature of the facts and circumstances in each particular case. (Philad. & Read. R.R. Co. v. Spearen, 47 Penn. 300.) But here, as in all other cases of this kind, negligence is the
The defendant is not liable for mere accident or mischance, nor unless it can be also shown that there was actual negligence which caused or produced the accident and damage. Without the aid of sheer conjecture, or some presumption of law or fact, beyond what the facts proved rationally imported, it is not easy to see how the jury could infer either that the defendant had been guiltyAf negligence, or that the fire was set by sparks from the engine, rather than from the burning cornstalks. The jury is not to jump at a conclusion without proofs. It has been well asserted that if a liability were to be inferred from the mere fact of a fire and damage, it would make railroad companies insurers against all fires occurring along the road, from whatever cause; and if the same thing were to be presumed from the bare fact of a fire set by sparks from an engine, that would make them liable even for the slightest omission or neglect, or for mere accident or misadventure arising from the act of God, the operation of natural causes, or other circumstances beyond their control, or for the legitimate exercise of their own lawful rights and powers, and for damages within the principle of damnum absque injuria. The plaintiff must make out affirmatively a prima facie case of liability.
In Bass v. Chicago, Burl. & Quincy R.R. Co., (28 Ills. 9,) a demurrer was overruled to a declaration charging that the
In Ellis v. Portsm. & R. R.R. Co., (2 Iredell, 138,) the court below had charged the jury that if they believed the plaintiff’s fences were burned by fire from the engines, the defendant was liable ; but on appeal, Gaston, J., expressly declared that the gravamen of the complaint was that the damage was caused by the negligence of the defendant, and that the court did not sanction the doctrine laid down in the charge ; but it was held that when the plaintiff shows damage resulting from an ac.t, which, “with the exertion of proper care, does not ordinarily produce damage, he makes a prima facie case of negligence.” This case, like that of Hull v. Saer. Val. R.R. Co., (14 Cal. 387,) in which there was evidence showing that the result was not probable from the ordinary working of the engine, may be said to go to the extreme verge of the law in sustaining a verdict on the ground that there was some evidence to support it; but they do not justify the proposition that negligence is ever to be presumed in these cases as a matter of law, nor as a matter of fact, without some evidence from which the fact of actual negligence, causing the damage, might rationally be inferred.
It is not always an easy thing to determine what amounts to some evidence, and what to no evidence, sufficient in law to make a prima facie case on the issue; but we are inclined to the opinion that the evidence here failed to cover the whole issue, and that there was no evidence before the jury from which they could reasonably be warranted in finding a
Of the instructions refused for. the defendant, the fifth was objectionable .in not leaving to the judgment of the jury the question whether there was any negligence in changing the kind of engines used on the road, as well as the general question of negligence on the whole issue. The seventh was open to a similar objection. The sixth should have been given. The eighth was rightly refused; but an instruction might properly have been given to the effect, that if there was negligence on the part of the plaintiff, which caused or contributed to produce the fire and damage, the jury ought to find for the defendant. But in this we would not be understood as saying that the plaintiff could be charged with negligence in not keeping down the grass in his orchard; but if he negligently allowed dry grass and weeds to be accumulated by the wind against the trees along the orchard on his own land, and near the railroad, it might be left to the jury to say whether there was any negligence which materially contributed to cause the damage.
The judgment will be reversed and the cause remanded.