213 Mo. 715 | Mo. | 1908
This cause is now pending in this court upon appeal on the part of the plaintiff from a judgment of the Jackson County Circuit Court in favor of the defendant. This is an action to recover damages -for the destruction of a brick plant in Kansas City, Missouri, owned and operated by the plaintiff, which is alleged to have been caused by fire from one of defendant’s engines, being run and operated over defendant’s railroad tracks, which passed by and near the brick plant of the plaintiff.
The charge in the petition is “that on the 8th day of January, 1903, defendant carelessly, negligently, and wrongfully ran and operated an engine with a large train of cars thereto attached over its tracks aforesaid, in such a manner as to cause-said engine to emit a large amount of sparks and cinders therefrom, and defendant carelessly, negligently, and wrongfully operated an engine with a defective smokestack, so that sparks and cinders escaped therefrom, and by means of such careless, negligent and wrongful acts aforesaid sparks and cinders were emitted from one of defendant’s engines and were blown against and upon the engine house and boiler room aforesaid belonging to this plaintiff,” etc. After the statement of plaintiff’s loss the petition further charges “that by reason of all of the aforesaid careless, negligent and wrongful acts of the defendant, sparks and cinders were emitted from said engine and conveyed by the wind,” etc. There was also embraced in the petition an itemized statement of the loss by reason of the fire, which in the aggregate amounted, to $12,771.82. The answer of the defendant was a general denial.
We shall not undertake to give in detail all of the testimony developed at the trial. We have read in detail the entire disclosures of the record and find that there was testimony offered by the plaintiff tending to show that the plaintiff on January 8, 1903, was the
One of the witnesses for the plaintiff, Ed Trapp, testified that the fire which destroyed the brick plant, in his opinion, occurred between ten and eleven o ’clock. He further stated that he saw a freight train pass over the defendant’s track ten or fifteen minutes before the fire, and he says that after the passing of that freight train he does not think there was any other train that passed between that time and the fire. The freight train of which this witness testified was a freight train with one. engine; he did not know how many cars were in the train; he says that he saw emitted from the engine smoke, sparks and cinders; he said that the cinders looked like they were of pretty good size; he also stated that the sparks were a good-size class of sparks. He stated that the engine of
Another witness testified for plaintiff, A. B. Mc~ Beth. This witness spoke of the different railroads that operated trains over the tracks of the defendant; he saw the fire consuming this brick plant on this morning, and while he says that frequently many trains would pass by this brick plant during the day, he says, referring to the morning of the fire, “I can’t say whether I saw any freight trains passing, except the Kansas City Southern.” This witness further testified that he was unable to call to mind any freight train that morning except the Kansas City Southern.
John W. Taylor, a witness on the part of the plaintiff, testified substantially as follows:
“Q. Are you familiar with what trains run over that track, or did run over that track? A. I was at the time, yes, sir.
“Q. What trains ran over there?
“Mr. Crane: I understand you were in Iola when this occurred?
“The Witness: Yes, sir.
“Q. I mean generally prior to that? A. The Kansas City Southern seemed to have a regular time for transfers at about 10 to 10:15, from the east bottoms to the west bottoms.
“Q. What kind of a transfer was that? A. Freight.
“Q. What kind of a grade was that? A. Well,*720 it was a very steep grade and a' curve at the same time.
“Q. Did you ever see any freight trains of any other road running over that line except the Kansas City Southern? A. The first three months I was there the Kansas City Southern did a little switching and then the Kansas City Suburban Belt, as it is called, did all their own switching on their line.
“Objected to by defendant as incompetent, irrelevant and immaterial.
“Q. Come down to the time the Kansas City Southern took charge of the line? A. There was no freight handled by any other road.
“Q. Their engines handled freight there? A. Yes, sir.
“ Q. How long had that transfer been made there at-that point about ten o’clock prior to that? A. Well, it seemed pretty regular for about a year before that.
“Q. How large a transfer would they usually bring up there coming west? A. Well, we didn’t always count them; I don’t remember that I ever counted them myself; I know they have taken some heavy trains.
“Q. A regular transfer of freight every day? A. Yes, sir.”
Robert Campbell, a witness for plaintiff, was the engineer in charge of the engine and boiler room in the brick plant. He stated in substance that there was a train passed and that it was one of the usual trains; he said it was passing upgrade and seemed to be very heavily loaded, and it was necessarily puffing very freely, as usual on a long run. He stated that he was working- with Mr. Heitman in the dry room and where they could hear the train and there was some remark made about this train, but the witness stated that he forgot what remark it was. - He then stated that the
There was testimony offered on the part of the defendant tending to show that the equipment of the freight train engines of defendant were of the most improved character, and in perfect condition, and by reason thereof could not have emitted sparks. There was other testimony tending to show that the fire originated in plaintiff’s own engine house. In other words, there was a conflict of evidence between the plaintiff and the defendant as to whether or not this fire originated from sparks or cinders emitted from the engine operated by the defendant.
At the close of the evidence the following stipulation was filed in this cause: “By agreement of counsel it is stipulated that the jury may find simply for the plaintiff or defendant, without finding any amount, which is to be submitted to a referee.”
At the request of the plaintiff the court gave instruction numbered 1, which was as follows:
“The court instructs the jury that if they find from the evidence in this case, that on January 8, 1903, plaintiff was the owner of the property described in the evidence, and that op said date said property was destroyed by fire communicated from an engine operated by defendant upon its road, in passing said place, provided you find said property was destroyed by a fire communicated froni an engine operated by defendant upon its road, in passing the property of plaintiff in controversy, then you are instructed that defendant is liable to plaintiff for the reasonable value of the property destroyed, if any, and your verdict will be for the plaintiff, although you may believe there was no negligence in the management of the engine and train at the time of the fire.”
“1. Yon are instructed that in this case the plaintiff claims that the brick plant was set on fire by sparks or fire emitted from one of the engines of the Kansas City Southern Railway Company; therefore before you can find a verdict in favor of plaintiff, you must find that the fire was started in that way. Even if yon should believe that the fire was started from Some locomotive, yet if it was not from one of the engines of the Kansas City Southern, plaintiff is not entitled to recover.
“2. Yon are instructed that it is charged that the fire in this case was started from sparks of fire emitted from a locomotive engine belonging to the Kansas City Southern Railway Company. Before, under any circumstances, the plaintiff is. entitled to a verdict at your hands, you must find that the fire was actually so started. If it was started in any other way, then the plaintiff is not entitled to recover, and your verdict should be for the defendant.
“3. You are instructed that it is your duty to try this case and to decide it precisely as you would a case between two individuals. The fact that the defendant is a railway company should make no difference whatever with the jury. You should base your finding solely on the testimony of the witnesses, the facts and circumstances in evidence and the inferences to be drawn therefrom, without regard to who is plaintiff or who' is defendant. In arriving at your verdict, all of the instructions, though read to you by opposing counsel, should be considered together, for all of them are the court’s instructions, and declare to you the law by which you are to be governed.”
With the exception of other formal instructions as to the number of jurors who were authorized to
The cause was submitted to the jury upon the evidence and the instructions of the court and they returned a verdict finding the issues for the 'defendant. A timely motion was filed by the plaintiff to set aside the verdict and praying that a new trial might be granted, which was by the court taken up and overruled. From the judgment of the trial court rendered^ upon the, verdict returned by the jury the plaintiff in due time and proper form prosecuted its appeal to this court, and the record is now before us for consideration.
OPINION.
The record in this cause presents but one proposition for our consideration, that is, whether or not the appellant, having tried this cause upon a certain theory, is in a position to ask for a reversal of this judgment predicated upon a theory which was never suggested during the progress of the trial.
We have carefully examined the disclosures of the record as to what occurred during the trial of this cause, and it is manifest from such record that this cause was tried by the plaintiff upon the theory that the fire which destroyed its brick plant emanated from sparks emitted from an engine attached to one of the freight trains of the defendant and at the time was being operated by the employees of the defendant upon its tracks which passed by the brick plant. That this is the theory is made manifest by the testimony introduced by the plaintiff, all of which is emphasized by-asking but one instruction predicated upon the theory as herein suggested.
The only testimony offered by the plaintiff which reasonably points to the origin of the fire was that of witness Trapp. His testimony was that this fire oo
But aside from the testimony as offered by the plaintiff tending to show that the plaintiff relied upon a recovery by reason of the showing that the fire emanated from an engine actually operated by the employees of the defendant, the Kansas City Southern, we have such theory emphasized by the instruction requested by the plaintiff. This instruction told the jury substantially that if they found that the plaintiff was the owner of the property described in evidence and that such property was destroyed by fire communicated from an engine operated by defendant upon its road, in passing said place, provided you find such property was destroyed by a fire communicated from an engine operated by defendant upon its road in passing the property of plaintiff in controversy, then you are instructed that the defendant is liable.
We are of the opinion that this instruction settled this proposition beyond all controversy. That this cause was submitted to the jury upon the theory on
That learned counsel for plaintiff, from the filing of the petition until the return of the verdict in this cause, never sought a recovery for the damages by reason of this fire upon any other theory than that the fire originated from one of the engines actually operated by defendant, in our opinion is too plain for discussion. If there was sufficient evidence that this fire originated from engines other than those operated by the defendant, however, upon defendant’s tracks, then it was the plain duty of the plaintiff to request the court to submit that theory to the jury, and having failed to do so, but requesting a declaration of law which defined and limited its right of recovery to one single theory, then in our judgment, the plaintiff is in no position to urge that the court committed error in giving the instructions requested by the defendant, which were simply counter instructions limiting the right of recovery to the theory as suggested by the instruction given for the plaintiff.
The proposition confronting us upon this appeal is no longer an open one in this State. It has repeatedly been announced by this court that the case reviewed by the appellate court will be reviewed upon the theory adopted by the parties in the trial of the cause, and, as was said by this court in Hill v. Drug Co., 140 Mo. l. c. 439, “It can now be announced as the fixed policy of our practice that parties litigant will be confined to the course of action they have adopted throughout the progress of the trial, even though that action be inconsistent with the course to have been pursued as indicated by the pleadings on file.”
Again, it was said in Campbell v. Railroad, 175 Mo. 161: “Both parties tried the case on the theory that it was necessary for the plaintiffs to show that the defendant had agreed to he ‘bound by the ordi
The St. Louis Court of Appeals, in Glaser v. Rothschild, 106 Mo. App. 418, thus stated the rule upon this proposition: “Appellant, in his brief on motion for rehearing, contends that, notwithstanding plaintiff was on the premises of respondent as a mere licensee when hurt, yet by virtue of section 6435, Revised Statutes 1899; it was the duty of respondent to surround the well-hole into which' appellant fell, with strong guard rails. This statute was not relied on at the trial, but the cause was tried by the appellant on the theory that respondent was guilty of negligence as at common law; having tried the case on that theory, appellant cannot shift his position on appeal by calling to his aid a statute which he neither specifically pleaded nor relied on at the trial.”
In Hamilton v. Railroad, 123 Mo. App. 619, the Kansas City Court of Appeals had in hand a case in which plaintiff charged that he received a fall from the top of a car and claimed that it was caused by the defendant’s negligence in furnishing a defective brake. The trial in the lower court proceeded upon that theory. The plaintiff failed of a recovery; however, afterwards it was urged that he had a cause of action under the Federal Safety Appliance Act. That court, in treating of that proposition, thus very clearly and correctly stated the law: “It is a part of plaintiff’s contention now that he has a case under an Act of Congress known as the ‘Federal Safety Appliance Act.’ He claims that though that statute was not, in terms, pleaded, and that though the petition was not drawn with a view to that act, yet, it sets forth facts which fairly put the case -within that statute. It is enough
We see no necessity for pursuing this subject further. The doctrine is firmly settled by the appellate courts of this State that they will simply review the case upon the theory upon which it was tried in the lower court. Emphasizing how closely this court adheres to this rule, we direct attention to the ease of Hilz v. Railroad, 101 Mo. 36. In that case it was urged in this court that an issue to which the evidence and instructions were directed was not in fact properly' made an issue. The court in disposing of that complaint used this language: “The causé having been so tried, both parties, by the evidence and instructions having treated the issue as properly made, both parties having asked its determination and submission to the jury, the objection that there was no such issue, we think, cannot now be made,” citing Bettes v. Ma-goon, 85 Mo. 580; Thorpe v. Railroad, 89 Mo, 650; Loomis v. Railroad, 17 Mo. App. 340:
If the adjudications as heretofore indicated are to be longer recognized as correct rules for the guidance of the courts of this country, then we see no escape from the conclusion that the plaintiff in the trial court predicated its right of recovery upon the theory that the fire was set out by a Kansas City Southern engine, and that it would be manifestly erroneous, as. well as unjust, to sustain plaintiff’s contention that this cause should be reversed and a new trial granted for the reason that the cause might have been tried upon some
We have given expression to our views upon the only proposition confronting us as disclosed by the record, which results in the conclusion that the judgment of the trial court should be affirmed, and it is so ordered.