Babcock v. Canadian Northern Railway Company

• Decision Date: 10 May 1912
• Docket Number: 17,666 - (239)
• Citation: Babcock v. Canadian Northern Railway Company, 136 N.W. 275, 117 Minn. 434 (Minn. 1912)
• Parties: FRED R. BABCOCK and Others v. CANADIAN NORTHERN RAILWAY COMPANY
• Court: Minnesota Supreme Court

136 N.W. 275

117 Minn. 434

FRED R. BABCOCK and Others v. CANADIAN NORTHERN RAILWAY COMPANY

Nos. 17,666 - (239)

Supreme Court of Minnesota

May 10, 1912

On Appeal June 3, 1912.

Eleven actions ^[1] in the district court for Polk county against the Canadian Northern Railway Company to recover for damages to property caused by fire set by defendant's locomotive. The substance of the pleadings will be found on pages 439, 440 and 442. The cases were tried before Watts J., and one jury, under an agreement that they were to be tried as separate cases, and a separate verdict rendered in each case, and that each case was to stand independently of the others upon all of the evidence applicable to that case. At the close of the trial defendant's motion in each case for a directed verdict in its favor was denied. The jury returned a verdict in favor of each plaintiff as follows Fred R. Babcock $1,036.64, James Clark $1,270, Thomas Hanbury $1,067, William J. Brennan $809, John R. Stone $265 Wheeler-Misner Loan Co. $325, Hans Christensen $1,098, Frank Levascque $753, Andrew P. Peterson $930, Edith Hall $525 Patrick Hanbury $695, and Mary Peterson $968.

Defendant appealed in each case from the order denying its motion for judgment notwithstanding the verdict or for a new trial. Affirmed in each case.

SYLLABUS

Fire set by locomotive -- evidence.

Evidence held sufficient to warrant finding of jury that the fire which caused the injuries sued for was set by the defendant's locomotive.

Amendment of complaint.

Court held not to have abused its discretion in allowing amendment of complaint to conform to proof, by changing the plaintiff's allegation of ownership of the lands damaged by the fire herein involved and on which the personalty destroyed or injured by such fire was situated to an allegation of interest as entryman under the homestead laws.

Amendment of complaint -- continuance.

Court held not to have abused its discretion in denying the defendant's application for a continuance on account of such amendment.

Homestead entry -- ownership of timber cut.

A homestead entryman, in possession of his claim under a valid entry, is, except as between himself and the United States, the owner of all timber cut by him on the said claim, and need not, in an action for the destruction by fire of timber so cut and piled on the said premises, allege and prove that the said timber was cut in good faith for the purpose of preparing the land for tillage.

Assignment of claim.

In an action for injury and destruction of personalty by a fire alleged to have been set by defendant's locomotive, evidence held sufficient to show an assignment of the property-owner's claim for such injury and destruction to the plaintiffs.

Objection to evidence insufficient.

Objection to certain instruments offered in evidence as being "incompetent, irrelevant, and immaterial" held insufficient to challenge the admissibility of such instruments on the ground that they involved or grew out of an illegal transaction.

Claim assignable.

A claim for damages for the destruction of personal property by fire is assignable.

Assignment of claim by the insured.

An assignment of claim for damages to personal property by fire to the plaintiffs, who, as insurers of the said property, paid the loss to the owners, held not based upon the policy pursuant to which such payment was made, and hence not affected by any illegality which may have existed in the policy.

Hector Baxter and Washburn, Bailey & Mitchell, for appellant.

Albert Chilgren, Charles Loring and G. A. Youngquist, for respondents.

OPINION

PHILIP E. BROWN, J.

These eleven actions were brought to recover damages alleged to have been suffered by the plaintiffs in consequence of a fire claimed to have been set by one of the defendant's locomotives on September 29, 1910. The cases were tried before one jury under stipulation that they should be tried as separate cases, all evidence admissible as to any one of them to be received and by the jury applied to the case to which it was applicable, and separate verdicts to be rendered. Plaintiffs had verdicts in all of the actions, motions were made in the alternative for judgment notwithstanding the verdict or for a new trial, but were denied, and this appeal was taken. The cases must be disposed of here as separate cases. The Babcock case involves some questions not common to any of the others, and likewise the Christensen, Hall, and Thomas Hanbury cases. All of the cases, however, involve the question of the origin of the fire.

1. The defendant strenuously contends that the evidence is insufficient to sustain the finding of the jury that the fire was set by it.

It appears without conflict that on September 29, 1910, shortly after one o'clock in the afternoon, a fire was discovered on the north side of the defendant's right of way, nearly midway between the stations of Williams and Cedar Spur, in Beltrami county; that the distance between these stations was about two and one-half miles, the former being west of the latter, and the track between them was straight; that there was no wagon road directly connecting these stations, and that persons walking from one to the other customarily walked along the railroad track; that the summer and early fall of 1910 were very dry, and that the right of way on the north side of the track, near where the fire started, was incumbered with dry grass and other combustible material; that during the said summer and fall fires were burning in numerous directions from such point, and the country for many miles in all directions was timber land, consisting of cedar and tamarack, most of which had been cut over and the slashing of dead timbers left lying on the ground; that most of this country had been homesteaded, and many of the settlers had been fighting fires throughout the said summer and fall, and that some of these fires were burning at the time the fire in question started, none of them, however, being near; that at the time such fire started a hard wind was blowing from the south, or a little to the west of south; and that the defendant's locomotives were equipped with spark arresters to prevent the escape of sparks and fire. It was conceded by the defendant's counsel on the oral argument in this court that the fire in question, after it started as aforesaid, spread to the lands of the several plaintiffs herein, and burned or injured the property described in their several complaints.

In addition to the foregoing undisputed facts, there was evidence in the case which, if believed, would have warranted the jury in finding the following facts: That on September 29, 1910, at about one o'clock, p.m., an east-bound freight train, owned and operated by the defendant, consisting of a locomotive and forty loaded cars, stopped at Williams and then proceeded east, working heavily, and between Williams and Cedar Spur emitted large quantities of smoke, and about three-quarters of a mile from Cedar Spur the locomotive was working; that the track between these stations is nearly level, except for a slight upgrade, for some distance to the east of Williams; that at about the time the said train started east from Williams no person was seen at or near the point where the fire in question started, though a person at either of these stations could see to the other station and beyond, and there were persons in a position to have seen anyone who might have been at such point at such time; that, notwithstanding that there were persons who could have seen from one of these stations to the other at the time such fire started, no smoke or other evidence of fire was seen at such point until after the passage of the said train, and that the engineer in charge of the train saw no fire at or near such point, though it was his duty to report any fire seen by him on the right of way; that about seven minutes after the train passed the point where the fire started smoke was seen at such point, and that seven minutes later fire was discovered at such point, on the north side of the defendant's right of way, burning along both sides of the fence on such right of way, north of the track, about one hundred feet having burned along such fence when the fire was so discovered.

There was also evidence, given on behalf of the defendant, tending to show that its locomotive in question was properly constructed to prevent the escape of fire, that it had been duly inspected, and that the best quality of coal was used; and there was no evidence that sparks or fire were seen escaping from such locomotive at the point where the fire started.

In Karsen v. Milwaukee & St. Paul Ry. Co. 29 Minn. 12, 11 N.W. 122, Justice Mitchell, in disposing of a contention that there was no evidence that the fire which caused the injury was set by the defendant's locomotive, said [at page 13]: "The evidence tended to show that the fire started in the grass near and to the leeward of defendant's track a few minutes after a train had passed; that there was quite a stiff breeze; that there was no person, and no other fire than that of the passing engine, in the vicinity at the time. It being a matter of common knowledge that engines do emit sparks which start fires in this way, and there being no other apparent probable explanation of the origin of the fire, we think these facts rendered it highly probable that this fire was set from the passing engine, and fully warranted the jury in so finding."

The rule thus announced was followed and applied against the defendant's contention in Sibley v. Northern Pac. R Co. 32 Minn. 526, 21 N.W. 732; Dean v. Chicago, M. & St. P.R. Co. 39 Minn. 413, 40 N.W. 270, 12 Am. St. 659; Hoffman v. Chicago, M. & St. P.R. Co. 40 Minn....