Calkins v. Blackwell Lumber Co.

• Decision Date: 17 December 1912
• Citation: 23 Idaho 128,129 P. 435
• Parties: E. W. CALKINS, Respondent, v. BLACKWELL LUMBER COMPANY, a Corporation, Appellant
• Court: Idaho Supreme Court

129 P. 435

23 Idaho 128

E. W. CALKINS, Respondent, v. BLACKWELL LUMBER COMPANY, a Corporation, Appellant

Supreme Court of Idaho

December 17, 1912

NEGLIGENCE-EVIDENCE-CIRCUMSTANTIAL-WHEN SUFFICIENT-JURY-VERDICT-GENERAL-SPECIAL.

(Syllabus by the court.)

1. Under the provisions of sec. 4397, Rev. Codes, in an action for the recovery of money only, or specific real property the jury in their discretion may render a general or special verdict, and where a special finding of fact is inconsistent with the general verdict, the special finding controls the general verdict, and judgment must be entered in accordance with the special finding.

2. The evidence in this case examined, and held, that while there is a conflict in the evidence, we find that there is sufficient evidence in the record to support the findings of the jury and the judgment of the court.

3. It is a recognized rule of law in this state that in a civil suit, where negligence is the issue for the jury to determine, it is sufficient if the evidence, whether direct or circumstantial, creates a preponderance of the proof.

4. Circumstantial evidence is legal evidence, and if the facts are shown by circumstantial evidence, and are such that reasonable men may fairly differ upon the question whether there was negligence or not, and the jury concludes that there was negligence, the verdict of the jury should not be set aside or reversed.

5. In an action to recover damages resulting from alleged negligence, if the facts are such that more than one reasonable conclusion or inference can be drawn from the circumstantial facts in evidence-one that negligence has been shown and the other that negligence has not been shown-and if the jury decide and determine that negligence has been shown the action of the jury should not be disturbed.

6. Other questions immaterial and not prejudicial examined, and held not to be grounds for reversal.

APPEAL from the District Court of the Eighth Judicial District for Kootenai County. Hon. Robert N. Dunn, Judge.

Action to recover damages. Affirmed.

Judgment affirmed. Costs awarded to respondent.

John P Gray and Chas. L. Heitman, for Appellant.

The special verdict controls the general verdict and the special findings control the judgment. (Gwin v. Gwin, 5 Idaho 271, 48 P. 295; Bradbury v. Idaho & Ore. Land Imp Co., 2 Idaho 239, 10 P. 620; Menasha Woodenware Co. v. Spokane etc. Ry. Co., 19 Idaho 586, 115 P. 22.)

The proof of negligence that satisfies the law and upon which men can be charged and held to pay is the proof of negligence which is a cause of a particular injury. In this case the plaintiff did not show that any fire was ever negligently set by the appellant which was responsible for the burning of the lands in question. (Gibbons v. Wisconsin Valley R. Co., 58 Wis. 335, 17 N.W. 132; Menominee River Sash etc. Co. v. Milwaukee & N. R. Co., 91 Wis. 447, 65 N.W. 176.)

In proving a case by circumstantial evidence, it is the duty of the party resting his case thereon to show clearly and convincingly the negligence and the fact that the negligence is the proximate cause, and every link in the chain must be there, just the same as if a man's life depended upon it in a criminal case. (17 Cyc. 817; Finkelston v. Chicago M. & St. P. Ry. Co., 94 Wis. 270, 68 N.W. 1005; Frazier v. Georgia R. & B. Co., 108 Ga. 807, 22 S.E. 996; Atlantic Coast Line R. Co. v. Watkins, 104 Va. 154, 51 S.E. 172; Consumer's Brewing Co. v. Doyle's Admx., 102 Va. 399, 46 S.E. 390; Neal v. Chicago R. I. & P. Ry. Co., 129 Iowa 5, 105 N.W. 197, 2 L. R. A., N. S., 905; Georgia Southern etc. Ry. Co. v. Thompson, 111 Ga. 731, 36 S.E. 945; Asbach v. Chicago etc. Ry. Co., 74 Iowa 248, 37 N.W. 182; Blid v. Chicago & N.W. Ry. Co., 89 Neb. 689, 131 N.W. 1027; Ruppert v. Brooklyn Heights R. Co., 154 N.Y. 90, 47 N.E. 971; Cleveland etc. R. Co. v. Marsh, 63 Ohio St. 236, 58 N.E. 821, 52 L. R. A. 142; Chicago R. I. & P. Ry. Co. v. Rhoades, 64 Kan. 553, 68 P. 58.)

McFarland & McFarland and Franklin Pfirman, for Respondent.

The care, caution and diligence required by the law is always measured by the circumstances of the particular case, and the rule of admeasurement is, the greater the hazard the greater the care required. (1 Thompson on Negligence, sec. 25, and numerous cases cited.)

Every ground of negligence of which appellant was found guilty by the jury was a violation of the statutes (Sess. Laws 1909, p. 227) and a misdemeanor under the act. These acts constituted negligence as a matter of law. (Wheeler v. Oregon R. & Nav. Co., 16 Idaho 375, 102 P. 347.)

A fact can be said to be established by circumstantial evidence in a civil action when the facts relied upon are of such a nature and are so related to each other that the conclusion sought to be established can fairly and reasonably be drawn from them. (Meier v. Northern P. Ry. Co., 51 Ore. 69, 93 P. 691, and authorities cited; Chicago R. I. & P. Ry. Co. v. Wood, 66 Kan. 613, 72 P. 215; Adams v. Bunker Hill etc. Min. Co., 12 Idaho 637, 89 P. 624, 11 L. R. A., N. S., 844.)

In civil cases it is sufficient if the evidence agrees with and supports the hypothesis which it is adduced to prove, and it is not necessary that it should exclude other hypotheses in order to enable the plaintiff to recover, but the case should be submitted to the jury, and the jury should decide according to the reasonable probability of the truth. (Greenleaf on Evidence, 12th ed., sec. 13a; Schoepper v. Hancock Chemical Co., 113 Mich. 582, 71 N.W. 1081; Western Travelers' Acc. Assn. v. Holbrook, 65 Neb. 469, 91 N.W. 276, 94 N.W. 816; Barnowsky v. Helson, 89 Mich. 523, 50 N.W. 989, 15 L. R. A. 33; Lillstrom v. Northern P. R. Co., 53 Minn. 464, 55 N.W. 624, 20 L. R. A. 587; Philadelphia etc. R. R. Co. v. Huber, 128 Pa. 63, 18 A. 334, 5 L. R. A. 439; Portland Gold Min. Co. v. Flaherty, 111 F. 312, 49 C. C. A. 361, 21 Morr. Min. Rep. 555; Pruke v. South Park Foundry etc. Co., 68 Minn. 305, 71 N.W. 276; Indianapolis etc. R. Co. v. Collingwood, 71 Ind. 476; Miller v. Inman & Co., 40 Ore. 161, 66 P. 713; Hashman v. Wyandotte Gas Co., 83 Kan. 328, 111 P. 468; Davis v. Connecticut Fire Ins. Co., 158 Cal. 766, 112 P. 549; Holmes v. Goldsmith, 147 U.S. 150, 13 S.Ct. 288, 37 L.Ed. 118.)

Whenever there is substantial evidence to support a verdict, the same shall not be set aside. (Sec. 4824, Rev. Codes; Snowy Peak Min. Co. v. Tamarack etc. Min. Co., 17 Idaho 630, 107 P. 60; Fodey v. Northern P. Ry. Co., 21 Idaho 713, 123 P. 835.)

STEWART, C. J. Sullivan, J., concurs.

OPINION

STEWART, C. J.

This action was brought by the respondent for the purpose of recovering damages alleged to have been sustained by the respondent and ten other persons, who assigned their claims to respondent. The damages were the result of a fire which consumed timber upon land owned by the respondent and his assignors. In the complaint it is alleged that damages resulted by reason of the negligence of the appellant.

The complaint, after alleging ownership of the lands of respondent and the other parties interested and damaged, and the ownership and control of timber lands by the appellant, alleges:

1st. That the said defendant, during the period from June 1, 1910, up to the time of plaintiff's grievances herein complained of, and during the closed season of 1910, wilfully, unlawfully, negligently and carelessly failed and neglected to provide its said portable engines, jammers and logging locomotives with good, sufficient or proper spark-arresters, or other sufficient or proper appliances to prevent the escape of fire therefrom.

2d. That the said defendant negligently and carelessly permitted the spark-arresters in said portable engines, jammers and logging locomotives, and said engines, jammers and locomotives to operate in a defective, inefficient and insufficient manner, and wilfully, unlawfully, negligently and carelessly permitted sparks to escape from said portable engines, jammers and logging locomotives, whereby numerous fires were started along and adjacent to said railroad of defendant.

3d. That during the said period the defendant wilfully, unlawfully, negligently and carelessly set out, and caused to be set out, fires in slashings and down timber on its said timber lands and its said timber holdings along and near its said railroad, for the purpose of clearing said lands, and the lands on which it owned the said timber, of brush and other inflammable material, without first obtaining permits or any permit in writing or print, or at all, from the fire warden of the fire district then duly established and in which said lands and timber were situated, and without sufficient or any help present to control the same, and without guarding or watching the same.

4th. That during said period the defendant wilfully, unlawfully, negligently and carelessly failed and neglected to keep the ground for fifty feet on each side of the track of said logging railroad so operated by defendant, or such portion thereof owned or controlled by defendant, free or clear from combustible and inflammable materials, but allowed the said right of way to be and remain covered with dry grass, sticks, old logs and other inflammable materials and negligently, and carelessly permitted said materials to be set on fire by its said locomotives, jammers and portable engines and to continue on fire and to burn without making sufficient or any efforts to extinguish such fires after the same were started.

5th. That at numerous times during said period the defendant wilfully, unlawfully, negligently and carelessly suffered and permitted its employees to leave deposits of fire, live coals and ashes along said railroad and on said railroad's right of way and in the immediate vicinity of...