Manning v. Cape Girardeau & Chester Railway Co. , 137 Mo. App. 631 ( 1909 )

GOODE, J.

(after stating the facts). — There is failure of proof in one respect which the authorities preclude us from treating as immaterial. It will be noticed that though some of the witnesses saw sparks fly from the engine as it left the depot and passed up the ascending grade, they did not testify directly to seeing them as the engine went by the house, where the track was level. This circumstance is important, but less so than the one to be immediately stated. No evidence, was introduced to prove the possibility of the fire being ignited by sparks or coals thrown off by defendant’s engine at the distance, whatever that may have been, it was seen to throw them; and some proof of the kind was required. This, was decided by the Supreme Court in Campbell v. Railroad, 121 Mo. 340, 349, and that decision must control unless we can say it is a matter of common knowledge sparks or incandescent coals thrown out by a locomotive will fly as far as plaintiff’s house and set the. roof afire. No witness testified to having seen sparks from an engine fly so far, or that it was possible for them to do so and fall hot enough to ignite shingles; nor was anything proved tending to show how combustible the roof was or whether the weather was wet or dry at the time. In the case cited, which also was for the burning of a house, the Supreme Court said it was important to show the possibility of sparks flying or being thrown a sufficient distance to reach the house and with heat enough in them to set it .afire. Not only was this said, but the court quoted with approval from an opinion of the Supreme Court of New York (Sheldon v. Railroad, 14 N. Y. 223) wherein it Avas declared such proof must be resorted to, because a jury cannot take judicial cognizance of the fact that sparks and cinders emitted from a locomotive, may be borne a given distance by the Avind. The very evidence lacking in this case Avas introduced in Lead Co. v. Railroad, 123 Mo. App. 394, relied on by plaintiff.

The judgment is reversed and the cause remanded .to be retried.

Nortoni, J., concurs; Reynolds, P. J., is opposed to remanding.