The petition contained two counts,-the first of which alleged negligence on the part of the defendant, and the second did not, but was founded on the statute of Missouri of March 31, 1887, by which 'each railroad corporation, owning or operating a railroad in this state, shall be responsible in damages to every person and corporation whose property may be injured or destroyed by fire communicated, directly or indirectly, by locomotive engines in use upon the railroad owned or operated by such railroad corporation; and each such railroad corporation shall have an insurable interest in the property upon the route of the railroad owned or operated by it, and may procure insurance thereon in its own behalf, for its protection against such damages.' Laws 1887, p. 101; Rev. St. 1889, § 2615.
The answer, among other defenses, set up that the statute violated the constitution of the United States, by depriving the defendant of its property without due process of law, and by denying to it the equal protection of the laws, and by impairing the obligation of the contract made between it and the state, 'by the terms and provisions of which it was impliedly agreed that said defendant might and could use fire for the purpose of generating steam to propel said locomotive engines and cars attached thereto, and be responsible only for the negligent and careless use thereof.'
The defendant was incorporated September 10, 1875, under the general laws of the state, which authorized railroad corporations to be formed by voluntary articles of association filed in the office of the secretary of state, and to lay out and construct their railroad, to take lands for the purpose, and 'to take and convey persons and property on their railroad by the power or force of steam, or of animals, or by any mechanical power, and to receive compensation therefor.' Gen. St. 1865, c. 63, §§ 1, 2; Rev. St. 1889, §§ 2542, 2543.
At the trial the plaintiff introduced evidence tending to support the allegations of the petition; and the court, at his request, instructed the jury that 'if they believe, from the evidence, that during the month of August, 1887, plaintiff was the owner of the land in the petition described, and defendant was the owner or operating a railroad adjoining said land, having locomotive engines in use upon said road, and that on August 9, 1887, fire was communicated from a locomotive engine then in use upon the railroad owned or operated by defendant to plaintiff's property on his said land, and thereby the buildings and other property in the petition mentioned, or any of it, were destroyed, then the jury will find for the plaintiff.'
The court refused to give to the jury the following instruction, requested by the defendant: 'Though the jury may believe, from the evidence, that fire was communicated from a locomotive engine in use on defendant's railroad to plaintiff's property, as charged in the second count of plaintiff's petition, yet that fact is only prima facie evidence of negligence on the part of defendant, and, unless the jury believe, from the whole evidence in the case, that said fire was either negligently set out by defendant, or was communicated to plaintiff's property by reason of defendant's negligence, the plaintiff cannot recover.'
The defendant excepted to the instruction given, as well as to the refusal to instruct as requested, and, after verdict and judgment for the plaintiff, appealed to the supreme court of the state, which held the statute to be constitutional, and affirmed the judgment 121 Mo. 298, 24 S. W. 591. The defendant sued out this writ of error.
D. D. Duncan and L. F. Parker, for plaintiff in error.
[Argument of Counsel intentionally omitted]
Percy Werner and Garland Pollard, for defendant in error.
Mr. Justice GRAY, after stating the case, delivered the opinion of the court.
Notes edit
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
Public domainPublic domainfalsefalse