107 Mo. App. 209 | Mo. Ct. App. | 1904
This is an action for damages caused by a fire alleged to have been set by a locomotive of the defendant railway company. The fire consumed a considerable stretch of hedge fence on the plaintiff’s farm and fields of standing com, grass, oat-stubble and some fenceposts. It occurred in the fall of 1902. Plaintiff obtained judgment and defendant appealed.
‘ ‘ Q. “When you got up there, state to the jury what you saw in the way of that fire? A. Well, the fire had made out about two hundred yards from the fence, I guess, and it was spreading out.
“Q. On which side of the track was the fire? A. On the north side.
“Q. How close to the railroad track had this fire burned? A. Well it was burning right along the fence when I got up there; along about the right-of-way fence; probably on the other side, more on the inside; it seemed to be burning along slowly on the fence there. .
“Q. It was from the southwest, the wind? A. Yes, sir; I didn’t pay much attention to the fence; I went on to the fire; I didn’t notice very close. •
“ Q. What kind of ground was this it was burning on where it started there? A. It started in- — I think it was mostly grass and stuff right in where the hedge had burned out, and probably quite a good deal of under-, growth along there; the time I got there it had reached out; it was into the cornfield and Stubblefield, but I could see from where it started that it started about that point where there wasn’t any corn. Well, where the fire started There wasn’t any corn, I think, or anything else; just wild grass; there wasn’t anything; just a small patch of flat ground in there.
‘ ‘ Q. How long after you got to the fire was it that Mr. Wright came down there? A. Well, it must have been thirty minutes, I reckon, anyhow.
“ Q. Along the railroad track where you first saw it burning there was dry grass along there, was there? "What kind of stuff was on the ground? A. Well, there was some grass.
“Q. Had the growth on the right-of-way been mowed down? A. Yes, sir.
‘1Q. Was it laying there? A. I think it had been burned off.
“Q. You are sure about that? A. I would not be sure about that, no I wouldn’t. ■
“Q. And you say where you first saw it there under the fence was dry grass ? A. The fire was fighting along the fence, like, right close to the fence, or in amongst it; right in close to it anyway.
“Q. It was burning back onto the right-of-way too? A. Yes, sir.
“ Q. Now, Mr. Burgess, after you started you didn’t meet any freight train going up there did you? A. No, I didn’t meet any freight train.
‘‘Q. Then if a freight train had passed, it passed before you got up there? A. No, there hadn’t any freight train passed going east beforé I got up there.
“Q. Then this one might have gone west on the sidetrack there? What is your recollection about the freight train? A. The best of my recollection is’ that the freight train was in on the sidetrack waiting for the passenger.
“Q. Now what was the view from the point where you first saw the fire, from there to Vandalia; was it in-view of Vandalia? A. Yes, sir.”
Plaintiff testified that he had been to the town of Vandalia that day and while driving home observed the fire from the highway. He first noticed a passenger train pass and then saw heavy smoke rise from his fields. He reached home in from twenty to twenty-five minutes, and by that time much of his farm had been swept by the fire. It appears there was a high wind blowing from
There are some minor assignments of error which we have examined, but deem it unnecessary to discuss them. They will be overruled as not well taken.