Opinion
No. 21471.
November 20, 1950.
APPEAL FROM THE CIRCUIT COURT OF RANDOLPH COUNTY, LAWRENCE HOLMAN, J.
William M. Stringer, Moberly, for appellants.
Hunter, Chamier Motley, Moberly, for respondent.
This is an action for damages for property loss by fire, alleged to have been caused by sparks from a locomotive of the defendant railroad company. The trial resulted in a verdict for plaintiffs. Defendant then filed its motion for judgment in accordance with its motion for directed verdict, which motion was sustained and judgment entered for defendant. Thereupon plaintiffs took an appeal. The sole ground of defendant's motions for directed verdict and for judgment was that plaintiffs' circumstantial evidence was insufficient to permit a jury to find that the fire was caused by defendant's locomotive.
Plaintiff, Mrs. Motley, is the owner of a farm consisting of about 330 acres, located west of Huntsville in Randolph County, Missouri. Plaintiff, Jamison, is her brother and tenant. Defendant's railroad runs generally east and west through the Motley farm. The track is on an up-grade toward the east and passes through a cut on the farm. On April 19, 1948, a train drawn by a coal burning locomotive, passed over defendant's tracks going east. From ten to fifteen minutes afterwards plaintiff Motley and her daughter saw smoke north of the railroad tracks and in the northwest corner of the Motley farm. Both were at the farm house which is located about a quarter of a mile south of the railroad tracks. They saw no sparks coming from the stack of the engine which they saw pass the house ten to fifteen minutes before the fire was discovered.
Plaintiff, Jamison, was not at home at the time, but he arrived there before the fire stopped burning. He stated that the smoke was "black, just boiling." He went immediately to the scene of the fire. It had burned four or five feet inside the railroad right-of-way and north and west to a branch. The burned area covered about 4 1/2 acres upon which, prior to the fire, there had been standing hay, consisting of a mixture of lespedeza, timothy, red top and blue grass.
A neighbor of plaintiffs', Dave Baumann, testified that in November, 1947, he had hunted over the area involved for birds and the grass was so heavy his dog had trouble flushing the birds.
On the morning after the fire, Mr. Stein, defendant's section foreman, noticed the burned area. He had passed it daily before the fire. Before the fire took place it was covered with "dead grass and weeds and wild roses." Stein also testified that the track toward the east is up-grade, the percentage of which he did not know, but that with a load the pull would be heavy for a freight train. He further testified that he had never seen sparks emitted from the stack of a locomotive in that area.
This action was filed on May 12, 1948. On May 22, 1948, defendant paid three persons $5.00 each to make an inspection of the area where the fire occurred. Other inspections made by one of these witnesses were not shown to have been on plaintiffs' farm or to have been in an area where the conditions were the same as, or similar to, the area in which this fire occurred. This witness testified that he did not know the cause of any of the fires.
The sole question presented in this appeal is whether plaintiffs' proof was sufficient to permit a jury to find that defendant, in fact, set the fire which occurred on plaintiffs' property. The cases agree that the plaintiff must show circumstantial evidence, where no eyewitnesses were present, sufficiently strong to make sparks from an engine the probable origin of the fire and reasonably eliminate the probability of any other origin. Moreover, the circumstantial evidence must be sufficient to induce in the minds of reasonable men the conclusion that the fire did so originate. It is not sufficient that it might have so originated. Riggins v. Mo. Pac. R. Co., 208 Mo.App. 26, 233 S.W. 67; Clark v. St. Louis S. F. Ry. Co., Mo.App., 4 S.W.2d 843.
In the many reported cases on this question, invariably there are the same or similar items of proof, or circumstances, which are relied upon by the plaintiff to make a submissible case on the question of the origin of the fire. Without exception, various of these circumstances must be shown to entitle the plaintiff, under the law, to a verdict. Some of these circumstances, which the courts consider, follow.
The direction in which the wind was blowing. This circumstance is obviously to show that a spark could have been carried from the stack of the engine to the point where the fire occurred. There is no evidence in this record as to which direction the wind was blowing or whether it was blowing at all.
The condition of the weather. This circumstance is helpful in showing that a small spark could have started a fire under the conditions existing. The record here is silent on that point.
Whether sparks were seen coming from the engine on this particular occasion, or on any occasion from any engine in that vicinity. Plaintiff Motley and her daughter, the only persons who saw the engine, both testified that no sparks were seen coming from the stack of the engine which they saw ten to fifteen minutes before the fire. There was no evidence that sparks had ever been seen coming from any engine in that vicinity.
Whether the engine in question was laboring, whether the train was loaded, and the grade, if any, of the track at that point. There is evidence that the grade in that vicinity was up from west to east. There is no evidence that the engine was laboring, that the train was loaded and pulling hard, that the grade is sufficient to cause an engine to pull hard. The only evidence is that if a train is loaded, the engine would have to pull hard, and this witness testified that he did not know the percentage of the grade. Here there was no evidence of the type, kind or make-up of the train.
Whether the fire was burning before the engine passed. The fire was discovered ten to fifteen minutes after a train passed north of plaintiffs' house. The scene of the fire was a quarter to a half mile west of the house. Plaintiffs' statement makes much of the fact that the fire was burning fiercely when discovered. It is entirely possible that the fire was burning before the train passed and there is no evidence that there was no fire before that time.
The only item of evidence shown in the record and emphasized by plaintiffs is the passing of the train ten to fifteen minutes prior to the discovery of the fire. This is not sufficient to sustain plaintiffs' burden of proof. The Supreme Court in banc in Missouri Egg and Poultry Co. v. Railroad Co., 257 S.W. 477, 478, approved an instruction which said the jury could not find that the fire so originated "merely because an engine or engines belonging to the defendant passed by plaintiff's property shortly before the fire". In that case, the engine passed five to ten minutes before discovery of the fire and if that instruction correctly states the law under those circumstances, it correctly states the law where the time interval is even greater.
The five citations relied upon by plaintiffs, instead of sustaining their contention, support defendant's. In Niswonger v. Thompson, Mo.App., 124 S.W.2d 669, it was shown that the wind was blowing from the railroad toward the burned area; that all engines had to labor hard to get up the grade past that vicinity; that the train which passed shortly before the fire was discovered was puffing and blowing, and cinders, sparks and fire were coming from the stack; that other fires had been set by live cinders from an engine; that the engine in question was pulling eleven steel coaches and was laboring hard to get up the grade.
In Butcher v. Ry. Co., 225 Mo.App. 749, 39 S.W.2d 1066, the evidence showed that the train was going up a steep grade, was heavily loaded, was laboring hard, and was burning soft coal; that the weather was dry and that a high wind was blowing from the railroad toward the burned area; that the vegetation in the burned area consisted of dry grass which was readily inflammable; that the fire caught next to the right-of-way and burned away from the right-of-way in the direction the wind was blowing. Moreover, there was testimony that engines had thrown sparks prior to that time in that vicinity.
In Jasper v. Wabash Ry. Co., Mo.App., 24 S.W.2d 243, loc. cit. 246, dried grass and weeds, in quantities, were on the right-of-way. The fire burned from the right-of-way to the plaintiffs' property, with the wind. The fire occurred near a grade difficult for engines to climb, and it was shown that cinders had been thrown by engines on other occasions at that point. The schedule of trains with their type and load was shown at or near the time of the fire.
In Alcorn v. St. Louis H. R. Co., 219 Mo.App. 657, 284 S.W. 510, it was shown that there was a steep grade adjacent to the burned area and that trains frequently stalled in attempting to climb the grade; that a strong wind was blowing from the right-of-way toward the burned area; that the weather was dry; that a freight train passed shortly before the fire and was puffing loud; that sparks were seen flying.
In Chapple v. St. Louis H. Ry. Co., Mo.App., 284 S.W. 863, there was a steep grade by the burned area which required great effort for a freight train to pull. A freight train passed just before the fire was noticed and was laboring up the grade, with the engine throwing out smoke and cinders. There was a strong wind blowing from the engine toward the point of burning.
Obviously, the facts in those cases clearly distinguish them from the case at hand.
Plaintiffs make much of the fact that defendant's witness, Stein, inspected the burned over area on the morning following the fire. His action does not in any way constitute an admission that defendant is responsible for the fire.
Plaintiffs, moreover, believe that the action of defendant in securing three witnesses to inspect the burned over area constitutes an admission of liability. However, the record clearly shows that this inspection by these witnesses was not made until ten days after the suit was filed. Surely, litigant is not to be penalized for preparing its defense to a lawsuit. Defendant's only course to dispute the question of the amount of damages, as well as the question of liability, was to have disinterested persons view the area. This it did. The fact that defendant prepared its case certainly cannot be evidence of its liability.
There are many cases dealing with the circumstantial evidence sufficient to show the cause of a fire. We have found no case in which evidence comparable to that in this record has been held to be sufficient. Some of the many cases which uphold the trial court's action in sustaining defendant's motion for judgment in accordance with its motion for a directed verdict are: Fritz v. St. Louis, I. M. S. Railroad Co., 243 Mo. 62, 148 S.W. 74; Cole v. Kansas City So. Ry. Co., Mo.App., 268 S.W. 886; Little v. St. Louis-S. F. Ry. Co., Mo.App., 297 S.W. 980; Bates County Bank v. Mo. Pac. Ry. Co., 98 Mo.App. 330, 73 S.W. 286; Peffer v. Mo. Pac. Ry. Co., 98 Mo.App. 291, 71 S.W. 1073; Carroll v. St. Louis S. F. Ry. Co., Mo.App., 290 S.W. 647; Peck v. Mo. Pac. Ry. Co., 31 Mo.App. 123.
The judgment is affirmed.
All concur.