129 Mo. App. 88 | Mo. Ct. App. | 1908
On October 7, 1906, fire originated in defendant’s depot at Bowling Green, Pike county, Missouri, and was communicated to Mrs. McMillan’s' barn and thence to plaintiff’s barn, situated across the street north of the depot. The depot and both barns were entirely consumed by the fire. The action is to recover the value of plaintiff’s barn, the destruction of which is alleged to have been caused by sparks emitted from one of defendant’s engines. Defendant’s railroad runs in a southeasterly direction, through the city of Bowling Green. The depot building was located ten or twelve feet north of and parallel with the main railroad track. The building was a two-story frame structure, from fifty to sixty feet long, built of pine lumber, with two doors fronting the railroad track. A one-story bay window, projecting outward, was built in between the two doors. The building had been neglected and had settled on the north side and the wall had parted from the bay window, leaving a crack two or three inches wide. The wood about this crack had decayed and was dry and spongy. A wooden platform ten or twelve feet wide was constructed between the
Defendant offered an instruction in the nature of a demurrer to the evidence as a whole which the court refused to give. On instructions given by the court, the jury found a verdict for plaintiff and assessed his damages at $800. A motion for new trial proving of no avail defendant appealed.
In Gibbs v. Railroad, 104 Mo. App. l. c. 280, 78 S. W. 835, Goode, J., writing the opinion for the court, it is said: “A plaintiff suing a railroad company for damages caused by a fire alleged to have been set by a locomotive, can establish his case by circumstantial evidence that the fire was thus set, and is not to be defeated for lack of positive testimony on the issue, if he proves facts sufficing to authorize an inference that coals or sparks from an engine of the company were the source of his loss. [Otis v. Railroad, 112 Mo. 622, 20 S. W. 676; Kenney v. Railroad, 70 Mo. 243, 252; Red
No reversible error appearing, the judgment is affirmed.