Carr v. Davis

• Decision Date: 13 June 1924
• Docket Number: No. 23837.,23837.
• Parties: CARR v. DAVIS, Agent, et al.
• Court: Minnesota Supreme Court

159 Minn. 485

199 N.W. 237

CARR

v.DAVIS, Agent, et al.

No. 23837.

Supreme Court of Minnesota.

June 13, 1924.

Appeal from District Court, St. Louis County; W. S. McCleanahan, Judge.

Action by Dennis Carr against James C. Davis, Agent designated by the President under the Transportation Act, and others. From an order denying its alternative motion for judgment or a new trial, the named Jefendant appeals. Affirmed.

Syllabus by the Court

The evidence sustains the verdict of the jury finding that a fire was set by a locomotive of the Northern Pacific Railway Company on its right of way, and that it passed to the plaintiff's farm and burned his property.

The liability for a fire set by a railway locomotive is absolute and not dependent upon negligence. The court therefore committed no prejudicial error in charging upon the liability of the defendant though it charged that a high degree of care in respect of the fire was owing.

The court sufficiently charged that the fire must be traced definitely from its origin to the plaintiff's property and that a verdict could not be based upon conjecture and speculation.

There was no misconduct of counsel requiring a new trial.

Under Gen. St. 1913, § 7798, defendants must join in peremptory challenges. Washburn, Bailey & Mitchell, of Duluth, for appellant.

Hugh J. McClearn, of Duluth, for respondent.

DIBELL, J.

Action to recover for damage to the plaintiff's property by fire. There was a verdict for the plaintiff against James C. Davis, Agent designated by the President under the Transportation Act (U. S. Comp. St. Ann. Supp. 1923, § 10071 1/4 et seq.). There were other defendants. A verdict was directed for them. The issues submitted to the jury related to a fire claimed to have been started on the right of way of the Northern Pacific Railway Company by one of its locomotive engines. The defendant appeals from the order denying its alternative motion for judgment or a new trial.

The questions are:

(1) Whether the evidence sustains a verdict for the plaintiff.

(2) Whether the court erred in charging upon the liability for a fire originating from a locomotive engine.

(3) Whether the court charged sufficiently that the fire must be traced from its origin to the plaintiff's property and that a verdict could not be based upon conjecture or speculation.

(4) Whether there was misconduct of counsel requiring a new trial.

(5) Whether the court erred in requiring the defendants to join in peremptory challenges.

1. It is the claim of the plaintiff that on October 4, 1918, a fire was started by one of the locomotives of the Northern Pacific on its right of way at a point just west of the east line of section 24-48-23, a quarter of a mile south of the north section line, in Aitkin county; that it reached the village of Tamarack three miles east and three-fourths of a mile north on October 9; and that from there it went southeast and reached the plaintiff's farm a mile east and two and one-fourth miles south on October 12, the day of many destructive fires in northeastern Minnesota. This is the fire submitted to the jury as the basis of a recovery.

There is evidence from which the jury could reasonably find that on the day stated a fresh or new fire, one distinct from all others, sprang up on the southerly side of the right of way at the point stated a few minutes after a freight train passed east. Two or more witnesses in a position to know so testified. There was grass in the right of way. The weather had been dry all summer. It was a fair inference of the jury that the fire was set by the passing train. Babcock v. Canadian N. R. Co., 117 Minn. 434, 136 N. W. 275, Ann. Cas. 1913D, 924, and cases cited; Farrell v. Minneapolis, etc., R. Co., 121 Minn. 357,141 N. E. 491,45 L. R. A. (N. S.) 215;Canadian N. R. Co. v. Olson, 201 Fed. 859, 120 C. C. A. 197.

On October 9 a fire came to Tamarack from the west southerly of the railroad track. The railway employees went west of the village, a half mile or perhaps a mile, to meet and stop it. They had indifferent success. It worked southerly and easterly and burned about the creamery just west of the line between sections 15 and 16 at the southerly border of the village. It is sufficiently traced from there to the plaintiff's property; that is, the fact was for the jury.

The question whether the fire starting on the right of way in section 24 on October 4 was the fire which came to Tamarack on October 9 is more difficult. A consideration of the evidence convinces us that it was for the jury. It could have found either way. The case was tried for two mouths. Motions to direct a verdict for the defendants were submitted upon arguments lasting several days. They had careful consideration by the trial court. It concluded that the question was for the jury. That does not relieve us of the duty of examining the evidence. We have considered it thoroughly. A review of it would carry the opinion to an unreasonable length and it is not demanded by the circumstances. It is not all on one side. The jury could have found that the fire moved easterly from where it was set, smouldered a part of the time, and on October 9 moved with some rapidity to Tamarack. It is not our duty, nor was it that of the trial court, to demonstrate the correctness of the verdict. It is enough if the evidence fairly sustains it. We agree that it does. We do not fail to note that there were other fires in the vicinity prior to the burning of the plaintiff's property.

[2] 2. The defendant assigns error in the charge to the effect that the defendant was required to exercise the highest degree of care in respect of fires on its right of way. On objection made the court said:

‘With reference to the duty of the defendant to prevent the setting and spreading, and to accomplish the extinguishment of fires upon its right of way, that refers to the fires set by defendant's locomotive engines. If that does not appear from what has been said already in the charge I will now tell you that that limitation goes with what has been said.’

Under the statute, G. S. 1913, § 4426, the liability of a railroad for locomotive fires is absolute and the question of negligence is not involved. Anderson v. Minneapolis, etc., R. Co., 146 Minn. 430, 179 N. W. 45, and cases cited. The court told the jury that the issues were ‘confined to a determination of the question whether any liability has been shown because of the fire which it is claimed was set by an engine of the Northern Pacific Railway Company on section 24.’ The right of recovery was limited to a fire of railway origin where liability was absolute. The court elsewhere so charged. The defendant cannot complain that the duty of the defendant was referred to in terms of care, for the liability in respect of the fire to which the attention of the jury was limited was absolute.

3. In Lares v. Chicago & R. Co., 144 Minn. 170, 174 N. W. 834, in sustaining a verdict directed for the defendant, it was said that--

‘Where the evidence points with substantially the same force to two or more independent sources as the origin of the fire, a jury should not be permitted to speculate as to which was in fact responsible.’

This is the often-stated doctrine of our cases. An instruction embodying the thought was requested by the defendant. It is assigned as error that it was not given. In stating that the burden of proof was upon the plaintiff, and that speculation or conjecture is not proof, the court said:

‘In determining whether such burden has been sustained, you must not allow mere speculation or conjecture to control. You may draw legitimate inferences from established facts, but you cannot speculate or guess as to any material element necessary to establish liability against the defendant. And if,...