64 Mo. App. 382 | Mo. Ct. App. | 1896
This is an action for damages for the burning of a house belonging to plaintiff, alleged to have been caused by fire escaping from one of defendant’s engines. The fire occurred at 7:40 to 7:45 o’clock on the evening of the fourth day of January, 1894. The house in question was located about forty feet east of the defendant’s passenger depot at the city of Independence. The passenger depot is from seventy-five to one hundred feet long. The defendant’s railway consists of two branches from Independence, one of them being known as the Lexington branch, and the other as the main line. The track of the main line and the track of the Lexington branch come together beyond the west end of the passenger depot. The main track lies on the south side of the depot and runs in a southeasterly direction, while the track of the Lexington branch runs along the north side of the depot and in a northeasterly direction. The house in question was located between these two tracks, about forty feet from the main line and fifty feet, or something more, from the Lexington branch track. A freight train passed Independence, going east on the main line
The trial court sustained a demurrer to the evidence for plaintiff, and he appeals.
We are of the opinion that plaintiff’s case should have been submitted to the jury. The rule is quite familiar that in passing on the propriety of a demurrer to evidence, not only the evidence itself, but' every reasonable inference to be drawn therefrom should be considered.
The fire in question originated in the roof of the building, and had progressed far enough to be discovered within ten or fifteen minutes after the two passenger trains had passed by. There was no other
But the effect of defendant’s contention in support of the demurrer, is that the whole evidence in plaintiff’s behalf, including the cross-examination of witnesses, establishes a state of facts which fails to show that the fire was caused by the passing engines. The matters mostly dwelt upon in the argument of the cause were, that witnesses stated that they observed, while the house was burning, that the wind was slightly from a direction which would take sparks from the building, except when the train on the Lexington branch was passing; and that on that branch the engines, on account of a slight down grade, “usually” came into the station without using steam, and, therefore, without emitting sparks. Also, that in a building near to the one in controversy, there was fire in a stove. This fire was of soft coal and was so lifeless as to present no hindrance to persons endeavoring to save property from carrying the stove out of the building with their bare hands. It was also shown, possibly for the purpose of suggesting arson for gain, that plaintiff had insurance on the building for more than its value.
The judgment will be reversed and the cause remanded.