Atkinson v. Atlantic & Pacific Railroad

63 Mo. 367

• Court: Supreme Court of Missouri
• Decided: October 15, 1876
• Status: Published

Opinion

Hough, Judge,

delivered the opinion of the court.

This was an action to recover .damages for the destruction of three hundred and seventy fence rails, and for injury done to a large number of forest trees growing upon plaintiff’s land, which destruction and injury were alleged to have been occasioned by the negligent escape of fire from a locomotive of the defendant.

The plaintiff made a prima facie case of negligence against the defendant, which it did not attempt to rebut, and it .will therefore be unnecessary to notice the instructions given and refused by the court on that subject.

The only question in the case is as to the measure of damages. On this point the court instructed the jury as follows ; “ that plaintiff is entitled to recover of defendant the amount of damages which the evidence shows he has 'sustained, together with interest thereon at the raté of six per cent, per annum from the date of the burning.”

In the case of Patrick S. Kenney vs. The Hann. & St. Joe. R. R. ante p. 99,which was a suit for damages occasioned by the negligent escape of fire from the defendant’s locomotive, interest on the damages was allowed by the trial court, and its judgment was reversed for that reason. Judge Napton, who delivered the opinion of the court, said: “ We are not apprised of any statutory provision of this State which allows a jury to give interest for such damages as were claimed in this suit. There is no such provision in our statute concerning interest, and the 7th section of the Act concerning damages, which allows interest in cases of the unlawful conversion of property by the party sued, would not in terms, or by analogous reasoning, embrace a case where no benefit could possibly have accrued to the defendant by the negligence which occasioned the destruction of the property.”

That case is decisive of this and the judgment of the circuit court must therefore be reversed. '

As the case is to be re-tried, it may be well to remark that the true measure of damages, as to the trees injured,is the difference between the value of such trees' before the fire and their value after the fire.

The judgment will be reversed and the cause remanded.

Judge Wagner’ absent; the other judges concur.