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

• Decision Date: 02 August 1899
• Citation: 77 Minn. 360,79 N.W. 1032
• Parties: BRENNAN LUMBER CO. v. GREAT NORTHERN RY. CO.
• Court: Minnesota Supreme Court

77 Minn. 360

79 N.W. 1032

BRENNAN LUMBER CO.

v.GREAT NORTHERN RY. CO.

Supreme Court of Minnesota.

Aug. 2, 1899.

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 refusing a new trial, defendant appeals. Reversed.

Syllabus by the Court

Evidence in this case considered, and held, that it did not sufficiently appear that the fire which destroyed plaintiff's property was traced or identified as having been started by the defendant. C. Wellington, for appellant.

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

BUCK, J.

This action was brought by the Brennan Lumber Company, plaintiff, about August 15, 1896, to recover of the defendant the sum of $130,000 damages which it alleges it sustained on account of a fire running over plaintiff's land, and thereby burning and injuring pine timber and trees on said land, and destroying plaintiff's lumber camp thereon situate. It is also alleged that the fire originated September 17, 1891, on the line of defendant's railroad, by its train setting fire to dry grass, brush, and other inflammable material allowed by defendant to accumulate upon its right of way, and that the fire extended over intervening lands to the lands of the plaintiff, where it damaged said timber and trees. The different tracts of land are specifically designated in the complaint, and are within a territory about 12 miles north and south and about 9 miles east and west, and all northerly and northwesterly of the Great Northern Railway. The allegations of the complaint were denied by the answer. When the testimony was closed, the defendant moved for a verdict to be directed in its favor upon certain grounds stated in the motion. This motion was denied. The jury then returned a verdict in favor of the plaintiff for the sum of $67,554.46. Upon a settled case the defendant moved for a judgment notwithstanding the verdict, and, if that was not granted, then that it be granted a new trial. Motion denied, and it appeals to this court from said order. The evidence is quite voluminous, nearly all upon two points: (1) As to the origin of the fire that caused the damage, and (2) as to the amount of damages.

From the view which we take of the case, we do not deem it necessary to discuss and pass upon the question of damages, as the pivotal question is that upon the evidence,-did it warrant the jury in finding a verdict in favor of the plaintiff? In order to do this, it must reasonably have tended to show that the fire which caused the damage for which plaintiff sues originated through the negligence of the defendant. The timber and trees destroyed were pine, and that is the character of the trees in the surrounding territory. A better understanding of the geography of that region or territory can be had by taking the village of Hinckley as a basis therefor. The village is situate upon section 24, township 41, range 21, in the county of Kanabec. The defendant railroad runs in a southwesterly direction from Hinckley through this county, and in said village it is intersected by the St. Paul & Duluth Railroad, running north and south. Hinckley is situate on one of the extreme easterly sections of the governmental townships, nearly equidistant between the north and south lines thereof. About one-third of the land upon which this timber and the trees in controversy stood is in this governmental township, and in the northerly and northwesterly part thereof, and the nearest line of this main body of the land is between four and five miles from where it is claimed the fire started. The balance of the lands are in the following townships, viz.: Township 41, range 22, adjoining township 41, range 21, on the west, and adjoining the latter on the north is township 42, range 21, and west of this is township 42, range 22, and on the east township 42, range 20. Only about 500 acres of this land is in this last-described township, and is situate about three or four miles northeast of Hinckley. The most southeasterly land in township 41, range 21, is a separate 40-acre tract in section 20, about one and a half miles from the main body of land, and about four miles west of Hinckley, and nearly three miles northeasterly of the point where the plaintiff claims that the fire started which caused the damage. Township 41, range 22, directly west of township 41, range 21, contains only about 200 acres of this land, which is in section 2, and is about six or seven miles northwest from the defendant's road where the fire is claimed to have originated. The tract of this land nearest to Hinckley is about three miles northwest therefrom in section 15, township 41, range 21. This consists of only 120 acres, distant from the main body about two miles. In order to enable the plaintiff to recover in this action, it became necessary for it to trace the fire from the point where it alleges it started to its land where the damages occurred. To this end the plaintiff called as a witness Nels Martinson, who lived in Hinckley in September, 1891, and was working for defendant under a section foreman by the name of Gorman. He testified as follows: ‘I was working about four miles west of Hinckley. I saw fire come up there that day. As the freight came along, and went east, smoke came up right after it went. This was between bridges 83 and 84. There is a cut from 83 up. The train was going east. It is close to bridge 83, and crossing close to that bridge, nearer 83 than 84. The freight came along that afternoon. We saw smoke coming out. We went down on a hand car, and tried to stop that fire. There was a fire in a little crossing, I should judge about half a mile, or something like that, east of bridge 83; and the wind was pretty hard that day, and we could not stop it; it ran away; got outside the fence. I saw it immediately after the train passed. Saw no fire along the track anywheres before. I was working on the section all day, and was about a mile and a half from the point where the fire started. The track was straight. Don't remember exactly the other men who were there. One fellow's name is Newburgh; I remember that; and the other, I think, his name is Gorman, and his son. We all went down together on the hand car. After the fire got away, we could not do anything. Mr. Gorman put me on to watch the track and the bridges. [Witness refers to map.] That was the same crossing. At this time there was no fire on the south side of the track on that section, I had been at work on the section two days before this. I went on the bridge to watch there that night. I saw no fire, only the same fire that got out, except on the next section there was a fire on the south of the section. I observed this particular fire during the night, burning. It burned the north side. The wind was from the south, drove the fire north. I was on the section the next day, and observed the fire burning. It was burning north; and the next night I observed it burning in the same direction. I don't know if the fire reached Hinckley or not; I can't tell. I can't exactly say how long I observed the fire going in a northeasterly direction. I remember seeing this fire for quite a few days after. It was going north, as far as I know, after it got out. The fire spread out, so I can't just exactly tell. After it got in there, it goes on both sides,-kind of spread out. In the two days I was working there before I saw this fire start up I see no fire on the south side of that section. The section is between six and seven miles, and runs west about half a mile or three-quarters from the point where this fire started.’ On cross-examination he testified as follows: ‘There is a creek down to Pokegama. There is a creek goes right through 83,-a small creek; and there is one up to Pokegama west of it. The place where the fire started was close to the creek on that section. East of the creek-I am clear that it started east of the creek, on Gorman's section-there is another creek we used to call ‘Mission Creek.’ That is east of 83. Don't remember how far it is. Cannot exactly tell; it is a good while ago. The creek there on Gorman's section, called ‘East Pokegama Creek,’ that must be the creek. That must be the creek of 83 that was called ‘East Pokegama.’ Nelson's section ran right up to that bridge. That must be a mile and a half east of Pokegama. We were raising and repairing the track. * * * The smoke was not very big. When we first came there, the fire was not very big. Gorman was on the hand car, and a man whose name was Newburgh, and myself. I watched the bridge that night; watched along there,-the track there; moved around, so I saw the fire did not get in there. * * * When I first went to work on the section, two days before this fire started, I observed a fire towards Pokegama. It appeared to be on the south side of the track. It was something we had between Pokegama and bridge 83; right in there between the two. That was east from the track. That was not into the track that I see. After the 17th, I saw smoke come from there, and it seemed to be getting up a little closer, and there was fire, either one or two days after, got right in there on the south side of bridge 83. That fire crossed the track, and went north. I don't remember when I stopped work on the section. I recollect of a fire being up around Hinckley, and I helped to fight the fire at Hinckley. There were fires coming in from the south there, and I helped to fight these fires. It was after the 17th of September that I went to fight the fire at Hinckley. It can't be over two or three days anyway after the 17th. The wind was blowing strong all the while mostly. Sometimes it was not going so hard. At another time it got up and drove it. In the nighttime it didn't blow very much then. From the 17th to the 25th of September there was smoke all over, south of the track and north of the...