Brennan Lumber Co. v. Great N. Ry. Co.

• Citation: 83 N.W. 137,80 Minn. 205
• Parties: BRENNAN LUMBER CO. v. GREAT NORTHERN RY CO.
• Decision Date: 13 June 1900
• Court: Supreme Court of Minnesota (US)

80 Minn. 205

83 N.W. 137

BRENNAN LUMBER CO.

v.GREAT NORTHERN RY CO.¹

Supreme Court of Minnesota.

June 13, 1900.

Appeal from district court, Pine county; F. M. Crosby, Judge.

Action by the Brennan Lumber Company against the Great Northern Railway Company. Verdict for plaintiff. From an order denying a new trial, defendant appeals. Reversed.

Brown and Lewis, JJ., dissenting as to second point in syllabus.

Syllabus by the Court

1. The evidence produced at a second trial of this case (see 79 N. W. 1032), at which plaintiff again had a verdict, examined and considered. Held, that the plaintiff again failed to sufficiently trace, identify, and connect the fire which destroyed its property with that set out on defendant's right of way, and relied upon as the original of the one first mentioned.

2. Held, further, that, in accordance with the provisions of Laws 1895, c. 320, judgment for the defendant should be entered in favor of defendant notwithstanding the verdict; and it is so ordered. C. Wellington (R. C. Saunders, of counsel), for appellant.

Clapp & Macartney and L. H. McKusick, for respondent.

COLLINS, J.

Appeal from an order denying defendant's alternative motion made under the provisions of Laws 1895, c. 320, after a verdict in plaintiff's favor, in an action brought to recover damages alleged to have been caused by a fire set by one of defendant's locomotives. The cause has been here before (79 N. W. 1032), at which time a like order was reversed, and a new trial granted on the ground that from the evidence it did not sufficiently appear that the fire which caused the damage was traced or identified as having been started by the locomotive. It is obvious that the principal question at the present time, and one which must be disposed of, is whether plaintiff was more successful at the second than at the first trial in its efforts to adduce evidence which would tend to connect the fire which destroyed its property with a fire started by defendant's locomotive. If there was no substantial difference in the testimony, if there was still a failure to trace and identify by evidence the fire which it is contended was set by the locomotive with that which caused the damage, there remains a failure of proof, and the second verdict must be set aside on the same ground and for the same reason as was the first. A verdict in favor of plaintiff a second time, without additional evidence connecting the fires, and fairly establishing that plaintiff's loss was the result of defendant's negligence, must meet the fate of the first verdict,-it must be set aside. When the cause was here before the testimony of a number of witnesses for plaintiff, through whom the attempt was made to identify and connect the fires, was considered in the opinion quite in detail. These same witnesses testified at the second trial, but nothing material is claimed for their evidence, so far as it tended to supply the lack of proof, and its further consideration may be dismissed by saying that one or two of these witnesses were quite forgetful as to what they had previously testified to as to some matters of importance to the defendant herein. A failure to remember previous testimony is sometimes of such a notable character as to suggest that such failure is not altogether attributable to lapse of memory.

We need not refer particularly to the locality in which was situated the plaintiff's pine timber said to have been damaged, nor to the point where the fire in question originated according to the testimony of the witness Mortenson, nor to other matters so fully detailed in the former opinion. These things will appear sufficiently for present purposes upon a perusal thereof. So we pass to a discussion of the additional testimony produced by plaintiff in support of its contention, and for the purpose of supplying the defect in and failure of proof before mentioned. Three new witnesses appeared, and were sworn, namely, Martin Page, W. C. Backus, and A. J. Lammers. Page was a pine-land explorer, residing at Eau Claire, Wis., at which place Davis, plaintiff's general manager, and a witness at both trials, also resided. Backus was in the employ of Page. Both left Hinckley on September 16th, and camped that night on section 36, in the township north of the one in which were the bridges numbered 83 and 84, between which the fire testified to by Mortenson was set. This camp was something over a mile north, the intervening country, as well as all in the vicinity for miles about, being heavily timbered. Towards evening of September 17th smoke was observable to the south. That night the camp was moved two miles to the north, and smoke was still noticeable. On the morning of September 21st both men returned to the town of Hinckley, less than seven miles easterly. Their course was about due southeast for some four miles, and until they struck the railroad track, at about the same distance northeast of bridges 83 and 84, and thence along the track to the town. On the way, and about half a mile from the last-mentioned camp, they came to the edge of a fire which was burning slowly, evidently towards the north. From this point to that at which they struck the railway track the ground had been generally burned over. They saw no fire to the south and none to the north. They made no investigation of any kind, and, at most, merely observed, as they walked along, that they were crossing the pathway of a recent fire. Backus testified the same, in substance; and the question is, did this evidence tend in any degree to trace or identify the fire which started upon defendant's right of way on September 17th, at a point between bridges numbered 83 and 84, as the one which afterwards burned the timber in question? Giving to their testimony its greatest weight, it establishes two distinct facts: First. That from a point something over a mile north of defendant's line of railway both men saw smoke to the south on the evening of September 17th. How far south-that is, at what distance, or whether this smoke was that of the fire which is said to have caused the damage, or was from the fire south of defendant's line of railroad, which, according to Mortenson and other witnesses, had been burning for one or two days before-they did not pretend to state. Second. That on September 21st, as they walked to Hinckley, they crossed a strip of heavily timbered country which had been burned over within two or three days. This was south of plaintiff's lands, and at no time when on this line of march were these witnesses within three miles of the point between the bridges where it is claimed the fire started. That a strip of country to the west of Hinckley had been run over by fire on or just prior to the 21st was established by this evidence. That smoke prevailed in abundance south of section 36, on which they camped prior to September 17th, and that fire had burned over the ground covered by them as they journeyed on the 21st, was undisputed and indisputable at the first trial as well as the second. Both parties have asserted it, all through the litigation. There has never been any contention over it. But that there was smoke in the direction of defendant's line of railway, and the fact of fire, or of ground burned over, at the place fixed by these two witnesses, is not an identification of the fire which destroyed plaintiff's timber. It is not a tracing of the fire set out by defendant's locomotive on its right of way to the plaintiff's pine land, several miles north. It does not serve to connect one fire with the other with any degree of certainty. The testimony of these witnesses did not aid the plaintiff in its efforts to trace the fire which caused the damage to its source or origin. As a factor in the task incumbent upon the plaintiff, to trace and identify by this evidence this particular fire from the right of way to plaintiff's premises, this testimony was of no value.

In the former opinion reference was made to the fact that plaintiff's timber was injured in 1891, that this action was not brought until the year 1896, and that meantime, in 1894, the great Hinckley fire, which destroyed a large number of human beings, hundreds of animals, and denuded the country of its timber, had swept over the same section; and these facts, as well as the further fact that Davis, the manager, who was on the ground and had every opportunity to investigate, and to acquire all of the information possible, failed to do so, and made no claim upon defendant until this action was brought, more than five years later, were given some consideration when weighing evidence, and when reiterating and applying the proposition laid down in an earlier case, ‘that under such circumstances it was necessary that the fire should be...