85 Mo. 178 | Mo. | 1884
This was an action against a railroad for negligence in permitting fire to escape from its passing trains and burn the property of plaintiff: Suit commenced February 5, 1879. It is alleged in the petition, - That on or about the said second day of November, 1879, defendant, not regarding its duty in that behalf, did, whilst running its cars and locomotive engines upon the track of said railroad, by its servants and agents near by, and through the said tract of land of plaintiff in the state of Missouri and county of Jasper aforesaid, so' neg
It is further alleged, “that the agents, servants and employes in charge of said railroad, well knew that said fire had escaped and kindled in the manner as hereinbefore stated, but wholly disregarding their duty in that behalf failed and refused to extinguish said fire and to prevent its spreading, but went away and left the same-burning until it communicated to the said farm of plaintiff and destroyed said property as aforesaid.” To> this petition the defendant made answer by general denial. The case was tried by a jury.
Some nine or ten witnesses were .examined in behalf of plaintiff, in chief and in rebuttal. These witnesses testified substantially that on the second of November, 1878, near Carl Junction, a freight train of the defendant was going south ; that its progress there was up a slightly rising grade ; that on the defendant’s right of way and between the tracks of its road there was dry grass, varying from six to twelve inches in height; that immediately
On the part of the defendant evidence in contradiction of the case contained in plaintiff’s evidence was submitted. The conductor and engineer testified that as the train was going south on the occasion in controversy they saw no fire on the track or on the west side of the track, but that they observed a fire near some hay stacks on the east side of the track; that fires were pretty frequent in the country at that time, and that it would not require long for the fire which they saw near the stacks to jump across the track and reach the plaintiff’s premises. The fireman testified that he saw no fire on either side of the track when the train went south, and that his attention was not called to, nor did he see the fire near the hay
The following instructions were given at the instance of plaintiff:
“1. The court instructs the jury that if they believe, from the evidence that the Joplin Railroad Company, on or about the second day of November, 1878, while running its locomotive steam engine and cars on the line of road in Jasper county, Missouri, through its servants, agents and employes, permitted the sparks and fire to escape from its engine and set fire to’the grass along and by the side of its line of road, and damage ensued to plaintiff as alleged, then the jury may infer or presume that the fire escaped through the negligence of the defendant, its servants, agents and employes. And the court instructs the jury that in such case it devolves upon the defendant to rebut the presumption of negligence by proving that it was at such time using proper and safe locomotive and engine, and that its employes and servants were conducting them in a proper and safe way at the time the fire escaped, and unless the jury believe that the defendant has rebutted this presumption they will find for the plaintiff.”
“2. The court instructs the jury that defendant in this case is bound to a degree of care and diligence in proportion to the degree of danger and the probable extent of injury to the property of others in case of negligence, and if the jury believe that, on or about the second day of November, 1878, the defendant, the Joplin
Of its own motion the court gave the following instructions :
“1. The inference that because fire escaped from defendant’s engine, which damaged the plaintiff, the defendant was guilty of negligence, is fully rebutted, that is, overcome, by the defendant’s showing, to the satisfaction of the jury, that it used the best machinery and contrivances to prevent the escape of fire, and that careful and competent servants were employed by defendant, and if such inference of negligence is overcome by the evidence of defendant that it had tbe best machinery and appliances and careful and skilful servants, as aforesaid, then plaintiff cannot recover unless the plaintiff has proved to the satisfaction of the j ury other acts of negligence of defendant which caused the escape of the fire.”
“ 2. The court instructs the jury that, to entitle the plaintiff to recover, he must prove to the satisfaction of the jury: First, that the fire which caused' the damage to plaintiff’s property was set out and caused by the escape of fire from the fire-box or ash-pan of defendant’s engine, and, second, that the escape of such fire was caused by or was the result of the negligence of defendant’s agents, and if the jury believe from the evidence that defendant’s engine was provided with the best appliances, in common use, to prevent the escape of fire, and was managed and run by a careful and competent
The court refused at the instance of defendant, tc declare that as matter of law the case made by plaintiff was overthrown by the evidence of defendant and that the jury upon the evidence should find for defendant. It refused to instruct that the plaintiff could not recover if the fire escaped through the smoke-stack and not through the ash-pan or fire-box. It, also, refused to instruct that the one fact alone that the fire escaped from the engine and set out the fire that did the damage would not entitle plaintiff to recover. The jury returned a verdict for plaintiff in the sum of one hundred dollars. Prom the judgment on this verdict the defendant appeals.
The law governing this class of cases is so well settled in this state that it is only necessary to lay this case alongside of the most recent decisions of this court in order to dispose of the appeal. It is claimed by defendant that the petition fails to state a cause of action. That objection is answered by a reference to the case of Palmer v. R. R., 76 Mo. 217, in which a petition almost identical with this, was held to be sufficient. As the principal ground of objection to the action of the court below, it is urged that the only pretended case of negligence stated in the petition consists of negligently running and controlling the engine so as to permit fire to escape ; and that negligence in failing to provide a properly constructed and equipped engine is not mentioned at ail, and that it*was error in the court to submit any such issue to the j ury. The ability and ingenuity with which the objection is argued by the counsel for the defence go so far towards demonstrating its logical correctness, that I would be inclined to approve it and reverse the case, if I were not satisfied that no practical good could result from such action, and that no actual injus
It must follow from the law of these cases that the pleader in bringing his action need state only the substantive facts that the fire was negligently permitted to escape and burn the plaintiff ’ s property. It is, therefore, unnecessary for him to allege that the fire escaped by
But there are two reasons which forbid a reversal of the case on this account. The first one is that petitions identical with this one, so far as this point is concerned, have been treated as including within their scope and meaning negligence in providing machinery, as well as negligence in operating it, and as sufficient to put the defendant upon proof of care and diligence in both respects in order to repel the inference of negligence. Palmer v. R. R., 76 Mo. 217; Redmond v. R. R., 76 Mo. 550; Kenney v. R. R., 70 Mo. 253. The other one is that the defendant at the trial was, without objection from plaintiff:, allowed to introduce all its evidence in respect to the perfection and efficiency of its engine, as. well as the care and skill with which it wras operated. It thus appears that the material issue of negligence, which lies at the basis of this class of cases, in its unrestricted scope and meaning, went to the jury and was tried by the jury, and I do not think it would be just for the appellate
The instructions given in this case seem to follow the language of instructions which have been approved in several cases of the same character, and I see no material objection to them. The request of the defendant to instruct, as a matter of law, that the plaintiff ’ s case of negligence was rebutted by the defendant’s evidence, was properly refused. The evidence of plaintiff in chief and in rebuttal made considerable more for him than the bare fact that fire escaped and burned his property. There were other facts tending to strengthen th a prima facie case, which I need not stop to rehearse. Under the decisions of this court the issue was properly submitted to the jury. Palmer v. R. R., 76 Mo. 217; Kenney v. R. R., 70 Mo. 243. The request of defendant that the jury be instructed to find for defendant if the fire escaped from the smoke-stack instead of the fire-box or ash-pan, was not erroneously refused. It is true, that the place of escape from the locomotive engine is alleged in the petition to have been the ash-pan and fire-box. The negligence on trial related to the locomotive engine, in providing and operating it. Whether the fire escaped from it through the ash-pan or through the smoke-stack, is immaterial, unless the defendant has been prejudiced by the supposed variance. It was the locomotive engine in both events, and these are only different parts of it. That defendant has not been prejudiced by the supposed variance is apparent from the record. It seems to have accepted the escape of sparks from the smoke-stack as within the issue on trial, and, without objection from plaintiff, it submitted testimony tending to controvert
Upon the whole I am of the opinion that the judgment should be affirmed.
it is so ordered.