52 F. 711 (8th Cir. 1892), 117, Chicago, St. P., M. & O. Ry. Co. v. Gilbert

Docket Nº:117.
Citation:52 F. 711
Party Name:CHICAGO, ST. P., M. & O. RY. CO. v. GILBERT et al.
Case Date:October 03, 1892
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 711

52 F. 711 (8th Cir. 1892)

CHICAGO, ST. P., M. & O. RY. CO.

v.

GILBERT et al.

No. 117.

United States Court of Appeals, Eighth Circuit.

October 3, 1892

Page 712

S. L. Perrin, (J. H. Howe, on brief,) for plaintiff in error.

T. J. Knox and John A. Lovely, for defendants in error.

Before CALDWELL and SANBORN, Circuit Judges, and SHIRAS, District judge.

SHIRAS, District Judge.

On the 23d of May, 1889, a steam flouring mill and barn, with their contents, the property of the defendants in error, situated in the village of Adrian, in the state of Minnesota, in immediate proximity to a line of railway owned and operated by the plaintiff in error, were destroyed by fire. The owners of the burned property brought this action against the railway company for the purpose of recovering the damages caused by the destruction of their property, alleging that the company had negligently placed and suffered to accumulate, upon the right of way and land of the company adjoining the property of the defendants in error, combustible material composed of dry grass, weeds, rubbish, and the like, and that on said 23d day of May, 1889, the company ran a locomotive by said property which was not properly equipped nor properly handled to prevent the escape of fire, and as a consequence thereof fire was communicated to the combustible material upon the right of way, whence it spread to the mill and barn adjoining, causing their destruction. The company in its answer denied the several acts of negligence alleged against it, and averred that the fire and consequent destruction of the property were due to the negligent and careless manner in which the mill was managed, claiming that the fire escaped from the mill, and not from the locomotive of the company. Upon these issues the case was tried before the court and jury, the trial resulting in a verdict and judgment in favor of the plaintiffs below, the damages being assessed at $15,878.33. To reverse the judgment the railway company brings the case to this court by a writ of error.

It is stated in the brief of counsel for the plaintiff in error that 'the important question in this case raised by the first ten assignments of error is whether the case disclosed by the record can be properly and fairly distinguished from the case of Railway Co. v. Richardson, 91 U.S. 454. ' The assignments of error thus referred to are based upon the admission,

Page 713

over the objection of the company, of the testimony of several witnesses that on different occasions within some weeks prior to May 23, 1891, fire had escaped from the engines of the company in the immediate vicinity of the property subsequently destroyed. In the case just cited the supreme court held such evidence to be admissible, 'as tending to prove the possibility, and a consequent probability, that some locomotive caused the fire, and as tending to show a negligent habit of the officers and agents of the railroad company.'

We do not think counsel for plaintiff in error have successfully distinguished the facts of the two cases. Counsel cite and comment at length on the cases of Gibbons v. Railroad Co., 58 Wis. 335, 17 N.W. 132; Railroad Co. v. Stranahan, 79 Pa.St. 405; Allard v. Railroad Co., (Wis.) 40 N.W. 685; Ireland v. Railroad Co., (Mich.)...

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