Lindsay v. Winona & St. Peter Railroad Company
| Citation | 13 N.W. 191,29 Minn. 411 |
| Parties | Samuel Lindsay v. Winona & St. Peter Railroad Company |
| Decision Date | 30 August 1882 |
| Court | Supreme Court of Minnesota (US) |
Appeal by defendant from an order of the district court for Lyon county, Cox, J., presiding, refusing a new trial, after a verdict for plaintiff. The case is stated in the opinion.
Order reversed, and new trial ordered.
Wilson & Gale, for appellant.
The court erred in not charging the jury as requested by the defendant. Karsen v. Mil. & St. Paul Ry. Co., 29 Minn. 12; Great Western R. Co. v. Haworth, 39 Ill 346; Ill. Cent. R. Co. v. McClelland, 42 Ill. 355; Murphy v. Chicago & N.W. Ry. Co., 45 Wis. 222; Ohio & Miss. Ry. Co. v. Shanefelt, 47 Ill. 497; Ill. Cent. R. Co v. Frazier, Id. 505; Ill. Cent. R. Co. v Nunn, 51 Ill. 78; Chicago & N.W. Ry. Co. v Simonson, 54 Ill. 504; Kesee v. Chicago & N.W. R. Co., 30 Iowa 78; Kansas Pac. Ry. Co. v. Brady, 17 Kan. 380; Kansas City, etc., R. Co. v. Owen, 25 Kan. 419; Coates v. Missouri, etc., Ry. Co., 61 Mo. 38.
Plaintiff, being a mere trespasser, could not acquire any title to the hay and grain, and was therefore not entitled to a recovery for the destruction of either. Murphy v. Sioux City & Pac. R. Co., 55 Iowa 473; Lewis v. Chic. Mil. & St. Paul Ry. Co., 10 N.W. 336; Nesbitt v. St. Paul Lumber Co., 21 Minn. 491; Freeman v. Underwood, 66 Me. 229.
Forbes & Seward, for respondent.
The action is to recover damages for the destruction of personal property claimed by plaintiff, and situated on land in his possession. Defendant's servants set fire to dry grass on its right of way, and the fire spread over adjoining land and reached the land on which the personal property was. Negligence in kindling and guarding the fire is alleged. There may be some verbal inaccuracies in the charge, but as they are not likely to occur on a second trial we will not notice them. Defendant requested this instruction: "If you find that the place where the property in question was, was so situated, as to the railroad and prairie, as to be in apparent danger from fire, and that the plaintiff failed to take ordinary precautions to protect the same from fire, and that, by the exercise of reasonable care in this regard, the property in question would not have burned, you must find a verdict for defendant." The court refused to so charge. As the facts are, the question presented is not as to the duty of a land-owner near a railroad in respect to guarding his property against dangers from fire incident to the running of railroad trains, for the fire did not arise from such a cause; but it is as to the duty of a land-owner to anticipate and provide against danger which another owner may cause by setting fire to combustible matter on his own land; to anticipate that he will or may do so negligently, or be negligent in the care of a fire kindled by him.
The duty of an owner, where negligence is already committed and known to him, does not imply a duty to anticipate and provide against such negligence. We do not see how an owner can be called negligent because he does not foresee that his neighbor will neglect his duty of care, and will thereby cause danger to his property. In this case there could on the facts be no claim that, after the danger arose from defendant's act, the plaintiff did not use the utmost care to avert it. He was not guilty of contributory negligence by not foreseeing and providing against the negligence of defendant. The request was rightly refused.
Part of the property destroyed was hay and part of it wheat and oats the former cut by plaintiff without any right, but merely by trespass, on land belonging to defendant; the latter sowed and harvested by him by trespass, and without any right, on land belonging to the state. The defendant insists that plaintiff is not the owner of either, so as to be entitled to recover. As to the hay, it is clear he was not the owner and could not recover; for all the cases hold that product of the soil which comes by nature or the act of God, -- as trees and grass, -- when severed by a wrong-doer, still belongs to the owner of the soil. The only...
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