146 Mo. App. 609 | Mo. Ct. App. | 1910
Plaintiff sued for the value of property said to have been consumed in a fire set by one of defendant’s locomotives. The property was an iron-hoop mill building, machinery, hoops and supplies in it, in the town oJ; Marston, New Madrid county. The mill building was adjacent to a building used as a cotton gin and also one used as a planing mill, all the buildings being under one roof. There is no doubt the property was destroyed by a fire which burst out about one o’clock, November 12, 1906; but defendant contends the evidence was not sufficient to carry the issue to the jury of whether the fire was set by -a passing locomotive.
The only other complaint made is that the jury assessed damages for freight charges paid by plaintiff on certain consumed articles of personal property. The jury found the verdict for the full amount demanded, $1586.-23. Nothing was said in the petition about freight charges, but during the trial plaintiff offered to prove the amount paid for freight on the property when it was shipped to the factory, to-wit, $79.84. This evidence was excluded. The jury were not authorized by the instructions to give any damages for freight charges on the burned property, but were directed to allow plaintiff its reasonable value, if they found the fire had been set by one of defendant’s engines; and in ascertaining the value, to take into consideration the condition of the building, machinery, other property burnt, length of time it had been in use, its repair, together with all other facts and circumstances in evidence tending to show its value. No evidence regarding the freight paid was before the jury and hence it is not to be presumed the jury took that item into consideration in assessing the damages.
The judgment is affirmed.