Dawson v. Chicago, Burlington & Quincy Railroad

REYNOLDS, P. J. Plaintiffs, averring ownership of the premises upon which the buildings destroyed .had been situated, commenced this action against defendant for damages for the destruction of the buildings by fire. In the petition it is set out that these buildings were near a certain lumber yard owned and operated by the firm of Conway & Proctor (hereafter referred to as the lumber yard), in the city of Monroe; that this lumber yard and its buildings were located and adjacent to the main and switch' tracks of the defendant railroad company (referred -to for brevity as the Burlington); that on December 26, 1912, the defendant, while running, — 182 — operating and controlling a train of cars, the train consisting of an engine and a number of ears, and while running, operating and controlling the train, and while passing through the city of Monroe and near the lumber yard and buildings thereto belonging, carelessly and negligently permitted sparks and coals of fire to escape and be thrown from the engine pulling the train while passing near to and along by the lumber yard and buildings, which sparks and coals of fire set fire to certain buildings and sheds in the lumber yard and that sparks and coals of fire escaped and were' blown from the buildings and lumber yard and set fire to other buildings near to and adjacent to the buildings belonging to plaintiffs, from which sparks and coals of fire communicated to the buildings of plaintiffs and set fire thereto and caused the buildings of plaintiffs to be burned and totally destroyed;-that the burning and destruction of the buildings belonging to plaintiffs by the fire so communicated and by which the buildings were burned and destroyed, was the direct and proximate result of the sparks and coals of fire escaping from the engine of the defendant, to plaintiffs’ damage in the sum of $2990, for which, with costs, judgment is demanded.' The answer was a general denial. The trial was before the court and a jury, resulting in a verdict in favor of plaintiffs in the sum of $2990, judgment following accordingly. Piling a motion for a new trial and excepting to the action of the court in overruling it, defendant has duly appealed. .At the close of plaintiffs’ case in chief and again at the close of all the evidence in the case, defendant interposed demurrers, which being overruled, defendant duly saved exceptions. Learned counsel for appellant make six assignments of error,' but in their printed arguments in chief and in reply, dwell upon four points, namely, that the instruction in the nature of a demurrer to the evidence offered by defendant at the close of all the evidence in the case should have been given, and under this it is argued that the verdict is the result of prejudice and — 183 — passion as shown by the fact that the verdict was agreed to by only nine jurors; second and third, that certain paragraphs of plaintiffs’ instruction defining circumstantial evidence were erroneous and misleading, and assumed disputed facts to be true, was a comment on the evidence, invaded the province of the jury, singled out the testimony of two witnesses for the plaintiffs, to the entire exclusion of all of defendant’s evidence, and was error as a matter of law; and, fourth, that plaintiffs’ instruction No. 3, on the measure of damages, was erroneous. In his oral argument before us the learned counsel for appellant confined himself almost exclusively to the point that the demurrer to the evidence should have been sustained. It is establshed by repeated decisions of our courts, Supreme and appellate, that where a demurrer is interposed to the evidence of plaintiff the demurrer “accepts that evidence as true, whether contradicted or not by defendant’s proof, so long as it is not impossible as opposed to the physics of the case or entirely beyond reason. It takes defendant’s testimony as untrue where contradicted by plaintiffs’ proof. It leaves to the jury to settle the weight due the testimony, the credit due the witnesses and to reconcile contradictions, if any, in proof. So it allows to plaintiffs’ case the benefit of every reasonable inference of fact arising on all the proof.” That, says Judge Lamm, speaking for our Supreme Court in Division No. 1, in Stauffer v. Metropolitan St. Ry. Co., 243 Mo. 305, l. c. 316, 147 S. W. 1032, is a “trite and good doctrine.” This was substantially" repeated by the same judge, then speaking for thé court in banc, in Williams v. Kansas City Southern Ry. Co., 257 Mo. 87, 165 S. W. 788, that learned judge there adding (l. c. 116), when treating of the necessity of substantial evidence to sustain plaintiffs’ case, “We say substantial evidence, because the ‘scintilla’ doctrine is no longer the rule in this jurisdiction. It is exploded here as it is in England (Ryder v. Wombell, L. R. 1870, 4 Ex. 31) and as it is as a Federal doctrine (Pleasants — 184 — v. Fant, 89 U. S. 116).” We will apply these rules as the touchstone to the case at bar. It appears from the testimony of one of the plaintiffs that the improvements on their lot consisted of a granitoid block building sixty by eighty feet, with a twelve-foot side wall, two stories through the middle; also a lumber shed twenty-two by forty-six feet and a coal bin, all of which were destroyed and all built some three years prior to the fire. The lots themselves, this plaintiff testified, were worth from $1250. to $1600, and on the day of the fire the lots and improvements were worth from $4500 to $5000. After the fire the naked lots were worth about $1500,. making the value of the buildings destroyed between $3000 and $3400. Plaintiffs were engaged in blacksmithing, wagon making and in general repair business. Their buildings were south and a little east of the lumber yard, other buildings being between and in the immediate vicinity. The defendant had and maintained a .switch track along the north side of the lumber yard and parallel thereto and north of that was its main track; between the lumber yard and the switch track and the switch track and the main track there was grass, other vegetation and combustible material, all testified to have been very dry at the time of the fire. . The rails of the switch track were so close to the north wall of the lumber yard buildings that a car had knocked off part of the northeast corner of one of them. The buildings of the lumber yard were all pine; some parts of them had corrugated iron; the walls were old, decayed and more or ‘less rotten and broken in places. The planks on the lumber yard buildngs were set straight up and down; were of white pme, and having been put in green had shrunk, leaving cracks in the walls where one could put a hand or fist through. The length of the lumber yard and its buildings along the right-of-way was about seventy feet. Commencing at the northeast corner of the lumber yard building and at the north wall, was a ten or twelve-foot room, which it subsequently appeared contained a closet; then came a horse■ stable, with the — 185 — manger in front, and immediately against the north wall and about twenty feet west of the northeast corner. Going from east to west along the main track of the railroad and through Monroe City there was considerable up grade from east to west. The premises of plaintiffs were about one hundred and fifty feet from this right-of-way. The day of the fire was .rather chilly, the wind high and from the northwest. One of the plaintiffs testifying, said that he had observed trains passing back and forth frequently on the railroad; had observed freight trains going west coming from the east. Shortly before December 26, the day of the ‘fire, or shortly after, within approximately a week, witness had occasion to observe freight trains going from east to west along by the lumber yard and to observe whether the engine emitted sparks; had noticed on the evening of the 27th or 28th a freight train pulling up that grade, throwing sparks. Witness was then on the street north of the track and on the north side of that street and saw the. sparks from the engine clear over the trees on the south side of the track .and' saw that they came down through the trees on the north side of the street immediately north of the right-of-way, a half block or a short block north. The weather had been so dry that there was no dew or frost at night. Witness had noticed the growth, that is, grass, etc., between the switch track and the lumber yard, and the switch track and the main track, both just before and after the fire. There was some grass and weeds there and some weeds cut with a mowing scythe. The weeds were' cut down and lying there on top — some water grass and weeds there — and between the stubble and the building was grass and weeds and scattered trash, such as hay, which had worked out of the horse barn. There was grass all along between the main track and the switch track. Some of the stubble grass was removed after the fire and left the ground more or less loose, and the roots and grass and hay and weeds showed dead where burned over. Witness had seen the fire on December 26th, 1912, about twenty minutes — 186 — after noon. It was then burning at the northeast side of the horse barn of the lumber yard. The buildings and contents of the lumber yard were burned to a cinder, as were also a machine shop, a livery barn and all of plaintiffs’ buildings, including the blacksmith' and machine shop. Two other barns were burned at the same time. The fire was communicated to plantiffs’ buildings from the lumber yard and its buildings, the wind blowing the blaze from the lumber yard to plaintiffs’ buildings. The ground of the lumber yard was all burned over; so it was, too, between the switch track and the main track and between the switch track and lumber yard. Witness further testified he had seen a train passing through Monroe City about ten minutes before he saw the fire; was in his shop that day at the noon hour. There was no noise in the shop, no hands working at the forge or anything, and witness was talking over the telephone. The train came through and whistled and made such a noise that it interrupted his conversation over the telephone; had to stop talking until the train ran further down the line, as he thought far enough that he could talk and he then went ahead and talked to the party. He testified that he saw the train, and it was a freight train, going west. The engine of the train whistled when it came in; seemed to be pulling a pretty fair grade and making “a right smart noise” and “was working steam.” On cross-examination this witness testified that he was positive that the engine of that train whistled; it whistled as it was coming into Monroe. He remembered the fire alarm whistle; it sounded when the fire broke out. He was then in his shop. Repeated that he saw this train going west; did not remember seeing the local pass that day; had seen the train going west over the main track of the defendant road,- he presumed, ten minutes before he heard the fire alarm. The train was going at a medium speed, bell ringing, as he thought; could not say whether the train stopped at Monroe City. Asked whether the train was a long or a short one, he — 187 — said he had not measured it but explained that he had a place of only about ten or fifteen feet through which he could see it; had not stood and counted the cars as they went by but saw a freight train going west; did not know how many cars were in it or whether it was a long or short train; did not know, at the time, of the arrival of any other freight train that day except from what he had heard; kept na record of the arrival and departure of trains, though he had seen trains arrive. Another witness testified that the train he had seen about noon of that day was not moving very fast— pulling a pretty heavy drag — a heavy load. The engine seemed to be pulling very hard; seemed to be working steam pretty hard; had seen the Burlington trains during the time he had lived there, something like a year, throw out sparks when passing through Monroe City. Asked if he knew, as a matter of fact, whether or not the engine he had seen pulling the train about noon on the day of the fire, was emitting sparks as it passed through town, witness answered that he thought it was. A lady, who had been a school teacher for two years, testifying for plaintiff, said she remembered the occasion of the fire on the 26th of December. Just prior to the fire she was coming in from the country; had been to the country with her brother and returned to town about eleven o’clock; drove into town from the south, crossed the Burlington tracks near the mill crossing; drove over to the north part of town and back; crossed on Main street south and to her home in the south' part of Monroe City; drove north of the Burlington tracks and came in from the south, going north after they drove uptown; after going north they crossed the tracks again, going south, crossing the tracks on Main street; knew .where the Conley & Proctor Lumber Yard was. The crossing on Main street where she crossed the railroad tracks is not very far east of the Conley & Proctor Lumber Yard. She arrived at home that day a quarter of twelve-; that was the time by her clock. When she crossed the Main street crossing where she crossed the Burlington tracks she saw a — 188 — freight train coming west. It was then east of Main street. The reason it was impressed on her mind was because she had to drive a little fast to get across the track before the train crossed. Witness heard the fire alarm that sounded the day of the fire; that was about twelve or a quarter after by her clock, not long after she returned home. Asked what had first called her attention to the train that she saw coming west, if anything, she answered, “I just saw a train, naturally look down the railroad-track when go to cross it.” Asked how long after she saw this train she heard the fire alarm, approximately, she said she would judge fifteen or twenty minutes. On cross-examination this witness said she had heard'some whistle at twelve o’clock, which she knew was the twelve o’clock whistle; was getting ready to eat her dinner; was not eating dinner when the twelve o’clock whistle blew but was eating when she heard the fire alarm; had started out from her home to a place in the country between nine and- ten o ’clock and it was between eleven and twelve when she returned; possibly half past eleven; had stayed out to the place where she went about an hour; went in the house; hunted around for a key to unlock her suitcase, took quite a little while to find that; looked through the suitcase to see if everything was there, locked it up and returned home. It was about an hour and a half from the time she left until she got' back. A witness named Overly testified that on the day of the fire he was hauling cinders. After hauling the cinders he went to the Conway & Proctor lumber yard to clean it out; that was about eleven o’clock; cleaned out the driveway and drove around to the barn and cleaned that out, then went to the east to the other driveway and backed up to the barn. There was a horse in there at the time and some hay and ground feed; cleaned the stable out and quite a bit of hay was in the barn which he threw up. The horse’s head was to the west. He threw the feed against the north wall of the lumber yard which made part of the barn. There were — 189 — no cracks in the barn but in the fence. The boards on. the barn were placed straight up and down. The manger or feedway was to the east end of the barn; part of the manger joined the wall, not over six feet long; put in loose hay; threw it up right against the wall; was not a regular hand around the lumber yard then; worked a day now and then but had never been regular. After cleaning out the manger he left there two or three minutes of twelve. When he got to the Farmers’ and Merchants’ Bank the bell of the Catholic church, supposed to ring at twelve o’clock, rang; went three blocks west from there and a block south and tied up his team, then went home for his dinner. His home was about a quarter of a mile from where he hitched his team. After he got home he washed his face and sat down to the table; heard the fire alarm sound just as he sat down to the table; that was twenty-five minutes after twelve o ’clock by his clock. While he was in the lumber yard witness saw a man in.the barn. He came in with his team and witness drove up to let him pass; thought that man left before he (witness) did. Asked if there was anyone in or about the lumber yard or barn when he was there cleaning out the manger, witness said there was a boy there named Johnson, who was in the shed when he went out but he disappeared and witness saw no more .of him. While he was there witness cleaned the shed and went around the barn and cleaned that out; cleaned all over the shed and the driveway. No one that he saw was about the barn after he went there and until after he left; had no matches, pipe or anything of the kind about him; did not carry a pipe. When he heard the fire alarm witness testified that he said to his wife that that would “be loaded on” him, and he searched his pockets and found no matches or anything of the kind; did not carry matches unless going out to the farm. On cross-examination witness testified that he was in the barn at the lumber yard about half an hour; went there somewhere between eleven and twelve and left there two or three minutes of twelve, fixing that time — 190 — by the whistle or bell of the church; went from the bam three blocks and a half west and a block and a half south, tied up his team, and walked home, about a quarter of a mile, and directly after he got home and had washed up, heard the fire alarm whistle; had been in the barn thirty or forty-five minutes or more. There was a closet in the barn in the east end which was used promiscuously by people. Commencing at the northeast corner of the .barn for the first eighteen feet was the regular side of the barn. The picket fence commenced at the west end of the barn; something like eighteen feet from the northeast corner it was boarded up with boards. There was no opening in the boards on the north side of the wall, no cracks. When in the barn witness was within fifty or sixty feet of the main track of the Burlington, was from four to six feet from the outside of the wall, and the right-of-way is supposed to be fifty feet; saw no train as he came up there, nor while he was there, nor as he went away. On re-direct examination witness testified that he thought he heard a train at one time but saw none. There was no fire at the barn when he left; if there had been he would have put it out; just as positive of that as he was that he was sitting there. On recross-examination witness said that he thought once he heard a train whistle; had stayed at the barn ten minutes after that and saw nor heard no train go by after that; is sure he did not see a train go by the barn after he heard the twelve o’clock whistle. ■ On re-direct examination witness testified that he was on the outside of the barn gathering up some trash when he thought he heard a whistle and when he heard the twelve o’clock whistle or bell he was up at the Farmers’ & Merchants’ Bank going home. Again cross-examined, he testified that he saw no fire out on the right-of-way while he was there; even if he had not seen the fire he could have detected the smoke that close to him. On re-direct examination he said that the boards in-the barn were so tight that he could not have seen a — 191 — fire on the right-of-way, hnt he conld through the fence, as it was only six feet high; repeated that he did not see or hear a train as he left the harn going away. This witness appears to have been the last person in the harn immediately before the fire. Three hoys testified that on the day of the fire 'they were in the road in front of one Haskins’ house. Has-kins lived north of the Burlington and about one hundred yards west of Main street. During the noon hour they were playing foot hall between the. lumber yard and the side yard; were kicking the hall from one to the other; had a clear view of the Burlington tracks; it was vacant ground between them and the tracks. All testified that they saw a train pass through Monroe City that day, about ten or twenty minutes to twelve o’clock, a freight train, going west. The train did not stop at Monroe; could not say whether it was going fast or slow; did not know whether it was working steam. Ah saw the fire that day; were attracted to it by the smoke and heard the fire alarm; heard the fire-whistle just a little before they saw the smoke; from where the hoys were kicking the foot hall they could see part of the lumber yard. When they got to the fire it was burning in' the horse stall in the northeast corner, the roof of the shed of the lumber yard had also caught fire. One of the hoys had kicked the foot hall over toward the train and they thought it was going under the train and went over there near the train and one of them' went after it and picked it up; could see the hall and the train at the same time. There was a space of about ten or twelve feet between the ball and the tram. The train was then passing along the track. It is due to defendant to say that another hoy, playing with these three, said the hour they were playing foot hall that day was between nine and ten o’clock in the forenoon and the only train he saw was the local, which then pulled in. Two other witnesses testified to seeing the hoys playing foot hall that day, placing the time at about noon and testifying that they saw a freight train then pass. — 192 — A witness described the premises of the lumber yard in the fall of 1912; had been working around that vicinity and observed trains in passing; that was in threshing time, a little earlier than threshing time. The train he noticed as he was working on his threshing engine was a freight train, going west on the Burlington road. Asked what, at the time he was speaking of working on his threshing engine when the train passed, he had observed as to its emitting sparks, witness stated that he remembered one time especially, as the train came up there were pulling very hard and working steam, seemed, like full capacity, and the cinders and sparks were falling fast and thick all around and some of them fell on top of a gunny sack, part of the cover of his engine, and set it on fire. This, he said, referred to a freight train. Witness testified that he remembered another time when there was some trash set on fire immediately between the lumber yard and the shop. On cross-examination witness said that the time the gunny sack caught fire was not the 26th of December, the day of the fire in question. The wife of a Dr. Scobbee, then living in Monroe City, testified that she remembered the time of the fire in December; was at her home that day and saw a train pass on the Burlington track-; “saw lots of trains,” said the witness. On that day she was sitting by the window during the morning; her husband was not at home and she did not have to get dinner, and had been sitting by the window almost all morning; saw a train pass over the Burlington near noon that day, judged it was twelve, or twelve or fifteen minutes past twelve that, noon; it was a freight train going west. It was a cold, dry day and the wind was blowing from the northwest to the southeast, a strong wind; saw the fire before the alarm was sounded; saw it some fifteen or twenty minutes after she had seen the train pass. She had gone to the kitchen and left her child at the window; the child called her and she went back to the window and saw the fire, which was then at the northeast corner of the lumber yard, a little west of the northeast corner, and close up to the — 193 — wall of the lumber yard and on the outside of the wall. The fire was burning in the grass between the track and the lumber yard. When the fire alarm was sounded she was on her way to the fire. Witness could not say whether the engine she had seen pass about noon emitted smoke or sparks or tell anything about the length of the train; had not counted the cars; from her place she could just see a train as it goes through where she 'gets a view of it. On cross-examination the witness testified that she had frequently gone across the railroad right-of-way and observed that it was covered with weeds and grass and she described the locality. The time between seeing the train pass and seeing the fire was from fifteen to twenty minutes, and between seeing the fire and the blowing of the fire whistle she had enough time to get her own wraps and the baby’s wraps and hunt for the bahy’s cap; did not know how long it was; hardly thought it was twenty minutes. After she got the baby’s cap she went right across to the fire, though not directly to- it; thought the train that she saw going past had fifteen or twenty cars; thinks she noticed the engine but did not notice the caboose. Two other witnesses testified that they first' saw the fire outside of the fence, one of them saying it was outside the fence, between the railroad and lumber yard. Over twenty-five or more witnesses for plaintiffs testified to seeing or hearing a freight train pull past the lumber yard about noon on the day of the fire. We have set out rather fully the testimony of one of the plaintiffs, and of the school teacher, and of Mrs. Scobbee, as indicating the line of cross-examination pursued as to all of plaintiffs’ witnesses, in testing the accuracy of their testimony and means of knowledge, as it affords a fair sample of the line of cross-examination followed as to all of plaintiffs’ witnesses. While showing some inconsistencies as to details, all, however, testified in the most positive manner to having seen a freight train pull through on defendant’s track at Monroe — 194 — City on the 26th of December, 1912, at about noon. That was plaintiffs’ case in chief. On the evidence in chief there can be no question as to right action by the learned trial court in overruling the demurrer interposed by the appellant to that testimony. There was substantial evidence produced by plaintiffs, sufficient -to take their case to the jury. It is true that defendant introduced the testimony of many reputable citizens to the effect that they had neither seen nor heard any train passing west over the line of the defendant’s road at about noon on the day of the fire. It is also true that a number of those witnesses testified that the fire had not originated in the grass and trash on the outside, to their knowledge, but that when they first saw it it was in the building or going up its outer walls, several of these witnesses claiming that they had seen the fire at its inception. But, as said by our-Supreme Court in the cases we have cited and quoted above, on a demurrer interposed to the evidence of plaintiff, that demurrer “accepts that evidence as true, whether contradicted or not by defendant’s proof, so long as it is not impossible as opposed to the physics of the case or entirely beyond reason.” "We most certainly cannot say that the testimony introduced on the part of plaintiffs was impossible or entirely beyond reason, nor that it is opposed to the physics of the case. This last proposition is earnestly insisted upon, in effect, by the learned counsel for appellant in their exceedingly elaborate brief and argument. There those counsel contend that the documentary evidence which they introduced, and "which they claim are public documents, required by the Interstate Commerce Commission to be kept by interstate railroads of the movements of trains, in a measure constitute physical facts, or at least controlling evidence which we as an appellate court can accept as against the verdict and judgment, arguing that “when the testimony is in the form of documents, the advantage which a jury is supposed to have over an appellate court in passing upon the evidence does not exist.” The documents referred to are called “Block — 195 — Sheets.” Counsel cite for this the decision of the Springfield Court of Appeals in Neil v. Cunningham Store Co., 149 Mo. App. 53, l. c. 58, 130 S. W. 503, and cases there cited. The decision of the Springfield-Court of Appeals in that case is not controlling, as it was subsequently held by our Supreme Court that the Springfield Court of Appeals had no jurisdiction over the case. The case came to us for consideration after being sent back from the Springfield Court of Appeals, and in Neil v. Cunningham Store Co., 160 Mo. App. 513, l. c. 518, 140 S. W. 947, we held that the verdict of a jury is conclusive upon the appellate court in an action at law and that this is so whether the • testimony produced at the trial was given orally or by way of depositions. As bearing on the probative force of these “block sheets,” it is said by the Supreme Court of the United States in Caha v. United States, 152 U. S. 211, l. c. 222, that courts will take judicial notice of the orders of the Interstate Commerce Commission requiring such block sheets or records to be kept. But that is far from holding them conclusive. At most, if properly authenticated, they would be prima facie evidence. In Brooks v. Missouri Pacific Ry. Co., 98 Mo. App. 166, 71 S. W. 1083, considering the effect in evidence of the testimony of the train dispatchers and their records, showing the movements of 'trains, where' in that case the train dispatchers had testified that . no trains whatever had gone over the railroad without their orders and that there was no order for any train over the railroad at the time in question, except the regular passenger train mentioned, and that their records and those of the conductors showed no such other train, the Kansas City Court of Appeals said (l. c. 175): “The evidence thus introduced was sufficient to convince any reasonable mind, unaccompanied with suspicion as to the good faith with which it was offered, and without any contradictory testimony, that no freight train passed over defendant’s road at the time in question after the passage of the regular passenger train. That was just its value, and no more. It is not in the nature of phys — 196 — ical facts, which the courts and juries are hound to recognize and nothing can overturn as evidence. It is not probable, but it is possible, for a train dispatcher and his records to be in error, and for the reason of their apparent trustworthiness they should have great weight, but it does not therefore necessarily follow that the courts are authorized to say that such evidence completely overthrows other evidence which in the opinion of such courts is of less convincing character.” In Big River Lead Co. v. St. Louis, I. M. & S. R. R. Co., 123 Mo. App. 394, 101 S. W. 636, our court, passing on the effect of evidence of like character, that is of the records or sheets showing the movements of trains, said (l. c. 398) that it was “competent evidence.” That, too, is far from saying that it was conclusive, or of the force and effect of a physical fact. Those same counsel say in concluding their argument: “Without amplifying and burdening the court with' a further argument on the matter, appellant submits that the record evidence introduced by it in this case absolutely destroys the contention of the plaintiffs that a train passed through Monroe City at about noon on December 26, 1912!.” But that was the very question the jury determined otherwise. It is further said by the same learned counsel that the respondents do not attempt to impeach or discredit these records except by insinuation and appeals to prejudice in their argument before the jury. If such appeals were made they are not before us. Our statute (section 3151, Revised Statutes 1909) under which this action is brought, provides that every railroad corporation owning or operating a railroad in the State, shall be responsible in damages to every person or corporation whose property may be injured or destroyed “by fire communicated directly or indirectly by locomotive engines in use upon the railroad. ’ ’ This has been the law of our State for- a long while and under it many cases have arisen and been before our courts. One of the most carefully considered of the earlier eases construing the statute is that of Campbell v. Missouri — 197 — Pac. Ry. Co., 121 Mo. 340, 25 S. W. 936, where the constitutionality of the statute was attacked, it being claimed that the unconstitutionality consisted in allowing a recovery without proof of negligence on the part of the railroad company. There the petition, while stating all the facts necessary to authorize a judgment as in the case at bar, also contained allegations of negligence. Of that our Supreme Court, holding that under the statute it was not necessary to allege negligence, said (l. c. 348): “By -the statement of more than was required, plaintiff did not forfeit his right to recover upon proof of -the facts he was required to state, and did state, in his petition.” It was further held in that case that it was competent for witnesses to testify that other fires, both-before and subsequent to the one in question, had occurred at different places upon the line of defendant’s road and which had been started by sparks from some óf the defendant’s engines. That occurred here. Further along, in the opinion it is said (l. c. 350) and applicable to this case, that the evidence “tended to prove the possibility, and consequently probability, that the fire was communicated to plaintiff’s property from one of defendant’s engines;” and where the fact as to whether the fire originated from the engine, was alone in issue, and there was no direct proof of the fact, the court said: “It seems very clear that such evidence would have some tendency to prove that issue. The evidence was all circumstantial, and the facts testified to were circumstances, though slight they may have been, bearing upon the issue.” To like effect see Matthews v. Missouri Pac. Ry. Co., 142 Mo. 645, l. c. 656-657, 44 S. W. 802. In Big River Lead Co. v. St. Louis, I. Mt. & S. R. R. Co., supra, Judge Goode, speaking for our court, has said (l. c. 400): “A bare possibility that- sparks from an engine on defendant’s line might have kindled the fire, would not, it seems to us, justify a finding that it was thus kindled, though authoritative opinions appear to hold it would. We think the testimony ought to go to the extent of prov — 198 — ing the probable origin of the fire was cinders or sparks emitted from an engine. But we need not decide as to whether a possibility suffices to carry such a case to the jury, for a probability was shown in the present case by evidence tending to prove there was no other cause for the fire. . . . This circumstance, and the facts that said barn was nearest to the railroad, that the wind was then blowing from the railroad toward the barn and that the fire was discovered in a few minutes after the passage of the last train, and not long after the other two had passed, are of weight in showing a locomotive was the source of the fire.” It was there held that in cases where there is like proof, the question of the origin of the fire is for the jury. In Markt v. Chicago, B. & Q. R. R. Co., 139 Mo. App. 456, 122 S. W. 1142, the Kansas City Court of Appeals said, referring to the facts in case (l. c. 463) : “The probability is that the fire could have been communicated in no other way than from sparks emitted from defendant’s engine unless it was set by plaintiff himself. According to his statements he had just previous to its discovery examined the building and there was no evidence of fire anywhere except in the furnace which had been banked. . . . The evidence of the most positive character tends to prove that the fire could have originated in no other manner. The process of reasoning by excluding every other means by which the fire could have been started, tends to support the theory that it was by means of sparks thrown out by defendant’s engine.” Several cases are cited by Judge Broaddtjs, who wrote the opinion in that case, in support of this. These cases aré peculiarly applicable to the case at bar. One of the witnesses, testifying, and he appears to have been the last person in the building before the fire was discovered, testified most positively that there were no signs of fire in there when he left the building and that no one was_ in there when he left; that he had no matches with him; had used none; had on that occasion, no pipe; was not smoking. The fire broke out shortly — 199 — after he left. Unless this fire originated from sparks thrown by a passing locomotive, carried by a strong wind from the north and over the premises, it is impossible to account for it on any possible theory. With all their skill, ability and ingenuity, learned counsel for appellant suggest no tenable theory for the origin of the fire. But that there was a fire, that it occurred directly after the passing of a freight train, laboriously pulling up grade, hauling, a number of freight cars, is testified to by an overwhelming number of witnesses, not one of whom it was even attempted to impeach for' veracity or character. As we think, there is sufficient substantial evidence to show that the fire originated in the dry grass 'and vegetation between the tracks of the defendant' road and the walls of the building of the lumber yard, and was started by sparks from a passing engine of the ap-' pellant. The authorities on the subject of fires on railroad tracks are so fully compiled by my learned associate, Judge Allen, in Hudspeth v. St. Louis & S. F. R. R. Co., 172 Mo. App. 579, l. c. 586, 155 S. W. 868, and there reviewed by him that it would be a work of supererogation to attempt to cite or repeat them. We think that an examination of them lends sufficient authority to sustain the verdict of the jury as to the origin of this fire. [See, also, Vandeburgh v. St. Louis & S. F. R. R. Co., 146 Mo. App. 609, 124 S. W. 563.] The second, third and fourth points, made by learned counsel for appellant have been duly considered. We do not think any of these go to the merits of this case. The instruction on the measure of damage is complained of, which was said to be the damage to the real estate. That, was more favorable to the appellant than it was entitled to have. It is claimed that prejudice appears in the amount of the verdict and in the fact that but nine jurors signed it. The verdict, as to amount, is well within the uncontroverted and unchallenged evidence. The verdict of nine jurors is as conclusive as one by twelve. — 200 — It is true that in their brief submitted by counsel for respondents, attention is called to the fact that in producing the records of the movements of trains the “block sheets,” as they are called, made at Withers Mill and Lakenan, the former about eleven miles west of Monroe City, the latter on the branch of defendant’s road running from Hannibal to Palmyra Junction, points east of Monroe City, were not in evidence but accounted for as having been lost, and that Withers Mill is the only station between Hannibal and Palmyra Junction at which block sheets are made. The absence of these sheets was a proper matter of comment, if made, and probably did have some significance in the mind of the jury. Applying sections 1850 and 2082, Revised Statutes 1909, of which sections the writer takes the view announced by Judge Graves in his concurring opinion in Trainer v. Sphalerite Mining Co., 243 Mo. 359, l. c. 374, 148 S. W. 70, to reverse and remand this case even for the errors said to be in the instructions, and which errors do not go to the substantial rights and to the real merits of the controversy, would not be conducive to the due administration of justice. The judgment of the circuit court is affirmed. Allen and Becker, JJ., concur.