68 Mo. App. 465 | Mo. Ct. App. | 1897
Plaintiffs sued defendant for damages because of destruction by fire of thirty-two tons of baled hay, which they had stored in a building alongside defendant’s side track at Passaic station, awaiting shipment, and for which cars had been ordered. It was alleged, and the evidence tended to prove, that the hay was destroyed by fire escaping from one of defendant’s locomotive engines, which was, at the time, switching cars in the yards at Passaic.
On plaintiff’s motion, the court struck out the foregoing special defense. The case was tried on the
“The court instructs the jury that if you find and believe from the evidence that the hay of the plaintiffs was destroyed by fire and that the said fire was occasioned by sparks of fire which escaped from a locomotive engine belonging to the defendant, and in use upon its road, then you should find for the plaintiffs, and assess their damages at such sum as you believe from the evidence such hay was worth, not exceeding the sum of' two hundred and eighty-eight dollars, the amount sued for.”
I. Though a formal objection was made to the court’s instruction just quoted, defendant’s counsel, in their original brief (and which was the only bifief filed by them before the cause was first submitted) made but two points: First, that the court erred in striking out the special defense referred to in the statement, and, second, that the damages awarded by the jury ($288) were excessive. Since that, however, in a motion for rehearing, other matters of defense are suggested which I will notice later on.
As already stated, the defendant, by its answer, interposed, first, a denial of the allegations of the petition, and, second, a further defense, in the nature of a confession and avoidance, that even if the hay was destroyed in the manner charged in the petition yet defendant was not liable therefor, because the building in which the hay was stored was erected by Wolfe & Company on defendant’s right of way, under an agree
Speaking for myself alone, I think it may be seriously doubted if such a contract as that defendant had with Wolfe & Company — or at least that portion relieving the railroad company of responsibility for fires communicated from its engines — can be enforced. There is much plausibility in the claim that it so contravenes the public policy of the statute that the courts ought not to enforce it. Opposing counsel have discussed this and cited authorities apparently sustaining the respective theories of that question. I do not, however, regard it necessary in this particular case to pass on that proposition.
Assuming, however, the validity of this stipulation in the contract entered into between Wolfe & Company and the defendant railway company, to the effect that the company should not be held to pay Wolfe & Company for any losses by fire communicated by passing locomotives, and I yet fail to understand upon what theory of law plaintiffs can be bound thereby, or precluded from the recovery of such losses as they may sustain. Plaintiffs were entire strangers to any such
II. As I understand it, the foregoing disposes of every point made in defendant’s brief as originally submitted with the case. But in the motion and argument for rehearing, some other matters are suggested which I deem it proper to notice.
It would seem, then, that the petition here was sufficient to justify a recovery under the statute. And so the litigants in this case treated it. The cause was tried in the circuit court on that theory, and no such objection as that now made appears in the record of the trial. More than this, in appellant’s brief on which the case was submitted to this court, it is practically admitted, as stated in our original opinion, that the plaintiff’s cause of action is based on section 2615 of the statute. There is not a word of objection to the want of harmony between the petition and the evidence. Counsel there states that the petition alleges negligence, but that the plaintiffs, “in their proof, rely upon section 2615, Revised Statutes, 1889, making proof of negligence unnecessary, where property is destroyed by fire communicated from an engine.” The counsel then follows with the announcement -of his position. He says: 11 Our contention is that this section (2615) has no application to the facts of the case.” Further down on the same page (20) of the original brief, he says: “The question now presented is, do the facts in this case entitle the plaintiffs to the benefit of this statute.” And this is the sole question (with the exception of the complaint of excessive damages) which defendant’s counsel presented in that brief. He himself treated plaintiff’s cause of action as based on the
The first witness was D. O. Walker, one of the plaintiffs. He was not present at the fire, but he states that the hay was hauled to Passaic station during the four days, July 21, 22, 23, and 24; finished the morning of the twenty-fourth; that the hay was deposited near to the side track and in this corn crib, pen, or shed, ready to be loaded in the cars, which he had ordered from the agent; that this side track was used for loading grain and hay. In regard to this, the evidence all shows that this was a small station, with no regular depot building, that the company’s business was transacted by a merchant from a store near by, and that this side track was the point from which grain and hay were habitually handled.
B. A. Wilcox was the second witness. He resided within a quarter of a mile of Passaic station and saw the hay burn. He was asked what he saw at the time.
Ans. “I saw it burn up and burning.”
“Q. Did you see anything before that? Did you see any train there? A. Yes, sir; I saw an engine.
‘ ‘ Q. State to the jury what you saw with reference to the train? A. Well, there.was an engine there
“Q. How close did the engine run to this hay? A. Oh, I suppose six or eight feet, or ten.
“Q. Six or eight or ten feet of the hay? A. Yes, sir.
“Q. When did the hay take fire with reference to the time the engine was running back and forth where the hay was? A. It was about the same time it was on the loading track; they were setting out some cars.
“Q. When the hay took fire? A. Yes, sir.
‘ ‘ Q. You have known that little town ever since it started? A. Yes, sir.
“Q. You may state to the jury if the Missouri Pacific Railroad Company has a switch or side track for the purpose of receiving or shipping grain or hay? A. Yes, sir.
“Q. How long was it they had such side track?
A. I don’t know as I could give the exact date.
“Q. About how long? A. Oh, it has been four or five years.
“Q. During that time have they had an agent there? A. Yes, sir; I don’t know as they have all the time since that was put in; but for three or four years.
11Q. Did they have an agent there during July, 1894? A. Yes, sir.
UQ. Where was the fire at with reference to, the switch, when you first noticed it; which side of the. hay; was it on the side facing to the switch, or the opposite side? A. Where I first saw it was pretty near all over the top and all.”
The third witness was W. C. Leslie, the defendant’s section foreman. Said he remembered the burning of the hay, etc. The following questions and answers are taken from defendant’s abstract:
“ Q. Was there any train there at that time? A. Tes, sir; there was an engine on the side track.
UQ. What was the engine doing? A. Switching some cars.
tlQ. One of the Missouri Pacific engines? A. Tes, sir.
UQ. How close did the engines pass to the hay? A. I guess about eight or ten feet.
“Q. Where was the fire when you first observed it? A. It was in the corner of the pen nest to the railroad.
“Q. Nest to the railroad? A. Tes, sir.
“Q• How long before that had it been since the engine passed by there? A. I don’t remember; it would have been some time, though.
“Q. How long? A. Oh, I guess two or three hours, I espect; I don’t recollect how long it had been.
“Q. Don’t know how long it had been? A. No, sir.
“Q. Had the engine left that station? A. No, sir; hadn’t left.
“Q. It was still there? A. Tes, sir.
“Q. Where was it? A. It pulled down after it left.the hay, it pulled down to the north end of the switch.
UQ. Did it come back on the main track? A. Tes, sir.
UQ. How far was it from the hay, as it passed back on the main track? A. I don’t think it passed back by the hay on that main track; the train was’ on the main track and the engine was doing the switching on the side track.
CRO S S-EXAMINATION.
By Mr. Bailey: “Q. How long was it before the fire when you saw the engine come out by the hay? A. The engine pulled out and I saw the fire just starting.
“Q. You are in the employ of the railroad company? A. Yes, sir.
REDIRECT EXAMINATION.
By Mr. Graves: “Q. The engine just pulled out when you saw, the fire? A. Yes, sir.
“ Q. How long had the engine been there switching that day? A. Not very long; I don’t recollect; I don’t suppose more than twenty minutes.
“Q. You noticed the fire when the engine pulled out? A. Directly the engine left I saw the fire.”
T. A. Bon testified: Was at the time of the fire and when sworn as a witness conducting a grocery store; also defendant’s agent at .Passaic.
“Q. Do you recollect the circumstances of Walker Brothers having some hay the twenty-fourth day of July, 1894? A. Yes, sir.
11Q. It was by your switch there at Passaic? A. Yes, sir.
UQ. By the side of it? A. Yes, sir.
“Q. What became of that hay? A. It burned.
“Q. Was there a train there at that time? A. About that time!
“ Q. What was the locomotive engine doing? A. Placing some cars.
“Q. In placing the cars, how did it have to run with reference to this hay? A. It passed along by the side of it.
there? (Objected to as immaterial and hearsay; objection overruled; exception.)
“Q. Did you notice the engine when it passed by the hay, Mr. Son, switching up and down there? A. Coming in or going out?
■UQ. Over there at any time? A. I never knew the engine was in until about the time they placed the cars.
“Q. About the time they placed the ears? A. Yes, sir; they placed the cars south of the hay.
“Q. What were they placing cars there for? A. I think it was some empties for loading.
“Q. For Walker Brothers? A. I could not tell you positively.
“Q. Where was the fire when you first noticed it? A. The hay was afire and pretty well under headway before I saw it.
“Q. How long was the engine switching around there if you recollect? A. A very short time.
“Q. Was the engine still there when you noticed the fire? A. It was at the lower end of the switch.
“Q. It passed down at the lower end of the switch? A. Yes, sir.”
When, now, this evidence is taken in connection with the well known facts that locomotives carry fire and that they do sometimes emit sparks, even when the best appliances are used, is it not a mistake to contend that there was not a, scintilla of evidence adduced at the trial to prove that plaintiff’s hay was destroyed by fire coming from the locomotive then operated in and about the side track where said hay was stored? On evidence much weaker than this, it was held error to take the case from the jury; Kenny v. Railroad, 70 Mo. 243; Redmond v. Railroad, 76 Mo. 550; Torpey v. R’y, 64 Mo. App. 382.
Further than this, the record throughout shows that no such defense was relied on. The evidence stands undisputed that plaintiff purchased the hay from Funk Brothers, and that they, the plaintiffs, at the time of the fire, owned the same. Their title was put in issue by the general denial, but there was not a scintilla of evidence introduced at the trial which even tended to question plaintiff’s absolute ownership of the hay. If, then, there was an error in this regard, it was clearly not such as materially affected the merits of the action and should, for that reason, too, be disregarded. R. S. 1889, section 2303.
' In my opinion, the judgment ought to be affirmed. The other judges concurring, it is so ordered.