Chicago, Rock Island and Pacific Railway Co. v. Howell

• Decision Date: 09 October 1968
• Docket Number: No. 9875.,9875.
• Citation: 401 F.2d 752
• Parties: CHICAGO, ROCK ISLAND AND PACIFIC RAILWAY COMPANY, a foreign corporation, Appellant, v. Thomas W. HOWELL and Dorothy Howell, his wife, Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

401 F.2d 752 (1968)

CHICAGO, ROCK ISLAND AND PACIFIC RAILWAY COMPANY, a foreign corporation, Appellant, v. Thomas W. HOWELL and Dorothy Howell, his wife, Appellees.

No. 9875.

United States Court of Appeals Tenth Circuit.

October 9, 1968.

John A. Johnson, Oklahoma City, Okl., for appellant.

Donald R. Hackler, McAlester, Okl., for appellees.

Before MURRAH, Chief Judge, and PHILLIPS and HILL, Circuit Judges.

MURRAH, Chief Judge.

In this diversity suit against the Railroad, the Howells claimed that the Railroad's passing train set the fire which caused the damage to their adjoining land and which proximately caused injuries to Mrs. Howell in her efforts to put out the fire. The jury found that the passing train did set the fire and assessed damages to the property and for Mrs. Howell's injuries, the amount of which is not in dispute on this appeal. The Railroad meets the critical issue fairly and squarely with the contention that the evidence is wholly insufficient as a matter of law to justify the inference that the Railroad's train set the fire and that the trial court, therefore, erroneously refused to direct a verdict or judgment n. o. v. If the Railroad does not prevail as a matter of law, it does not seek a new trial.

The Howells, of course, have the burden to affirmatively show that the passing train set the fire. While there is no eyewitness or direct evidence that the train set the fire, it has always been the law in Oklahoma in cases like ours that the origin of the fire may be shown by circumstantial evidence. St. Louis & S. F. Ry. Co. v. Shannon, 25 Okl. 754, 108 P. 401 (1910). And once the fire is satisfactorily traced to the passing train, Oklahoma's Prairie Fire Statute imposes strict liability for all consequent damages. 2 Okla.Stat. 748 (1961).

The competency and sufficiency of circumstantial evidence have been sustained in a variety of situations, but the common denominator seems to be a tender box right-of-way or a volatile adjacent structure, a favorable wind, a passing train capable of emitting fire-setting sparks, the absence of any other fire-setting agent, the nonexistence of any fire immediately before and the presence of a fire soon after the passage of the train. See Missouri, K. & T. Ry. Co. v. Jackson, 174 F.2d 297 (10th Cir. 1949); Midland Valley R. Co. v. Barton, 191 Okl. 359, 129 P.2d 1007 (1942); Schaff v. Coyle, 121 Okl. 228, 249 P. 947 (1926); St. Louis & S. F. Ry. Co. v. Consumers' Light & Power Co., 111 Okl. 151, 238 P. 434 (1925); Missouri Pacific R. Co. v. Lamb, 99 Okl. 132, 226 P. 91 (1924); St. Louis & S. F. Ry. Co. v. Shannon, supra; Kansas City, Ft. S. & M. R. Co. v. B. F. Blaker & Co., 68 Kan. 244, 75 P. 71 (1904); Kansas City, Ft. S. & M. R. Co. v. Perry, 65 Kan. 792, 70 P. 876 (1902).

The Howells rely upon these circumstances: the weather was dry; part of the right-of-way was overgrown with inflammable vegetation within several feet of the track; a wind was blowing away from the track toward the Howell farm; a witness testified that he had seen other trains in this immediate vicinity emit sparks from their wheels and stacks and from the loose spikes in the track; another witness testified that soon after the train passed his attention was called to smoke on or near the right-of-way and that when he arrived at the scene about fifteen minutes later, he saw the fire jump the fireguard onto the Howell farm where it spread quickly.

Our case seems most like the old Kansas Perry case, supra, cited and quoted in the Oklahoma parent Shannon case, supra. And it is not materially different from Shannon itself or Barton, supra, which cites a number of Oklahoma cases in which the jury verdict for the landowner was sustained.

While the competency of the circumstantial evidence to prove the plaintiff's case is controlled by Oklahoma law, its sufficiency to go to the jury is controlled by federal common law. See Simler v. Conner, 372 U.S. 221, 83 S.Ct. 609, 9 L.Ed.2d 691; Gutierrez v. Union Pac. Railroad Co., 372 F.2d 121 (10th Cir. 1966); Christopherson v. Humphrey, 366 F.2d 323 (10th Cir. 1966); Basham v. City Bus Co., 219 F.2d 547, 52 A.L.R.2d 582 (10th Cir. 1955); Diederich v. American News Co., 128 F.2d 144 (10th Cir. 1942); F. W. Woolworth Co. v. Davis, 41 F.2d 342 (10 Cir.). Under the federal rule a directed verdict is authorized only when the evidence is all one way or so overwhelmingly preponderant in favor of the movant that the trial court in the exercise of its sound discretion would be required to set the verdict aside. See Texaco, Inc. v. Pruitt, 396 F.2d 237 (10th Cir. June 6, 1968); Christopherson v. Humphrey, supra; High Voltage Engineering Corporation v. Pierce, 359 F.2d 33 (10th Cir. 1966); United States v. Hess, 341 F.2d 444 (10th Cir. 1965). In Missouri, K. & T. Ry. Co. v. Jackson (an Oklahoma case), supra, this circuit sustained the competency and sufficiency of circumstantial evidence not materially different from this case and we would have no difficulty sustaining this verdict but for the testimony of the engineer of the passing train to the effect that he saw a fire burning in the vicinity of the right-of-way ahead of the train. The conductor also testified that a fire was burning when the caboose passed the same vicinity about two minutes later.

The Railroad argues with force and reason that the Howells' circumstantial evidence is conclusively overborne by this positive and uncontradicted testimony. If, of course, the fire was in the vicinity of the right-of-way before the train passed, the train did not set it. Thus, we can only conclude by its verdict that the jury simply did not believe the engineer or thought he was mistaken. Our lawsuit comes down to the fine point of deciding whether the jury may choose to disregard the engineer's testimony as corroborated by the conductor.

The fundamental rule which makes the jury the sole judge of the weight and credibility of testimony is subject to the caveat that testimony concerning a simple fact capable of contradiction, not incredible, and standing uncontradicted, unimpeached, or in no way discredited by cross examination, must be taken as true. And no judgment can be permitted to stand against it. See Chesapeake & O. R. Co. v. Martin, 283 U.S. 209, 51 S.Ct. 453, 75 L.Ed. 983; see also 62 A.L.R.2d 1191. We have consistently followed this precept. See Cundick v. Broadbent, 383 F.2d 157 (10th Cir. 1967); Perlmutters, Inc. v. Commissioners of Internal Revenue, 373 F. 2d 45 (10th Cir. 1967); Nicholas v. Davis, 204 F.2d 200 (10th Cir. 1953); Rapid Transit Co. v. United States, 295 F.2d 465 (10th Cir. 1961); Zimmer v. Acheson, 191 F.2d 209 (10th Cir. 1951).

The Howells do not contend that the engineer's testimony was incapable of contradiction, but they do contend that it was "patently incredible" when viewed in the context of the physical facts. They point to the circumstances upon which they rely to make their case, i. e., the volatile condition of the right-of-way, the favorable wind, and the fact that the engine was the only known or suggested fire-setting agency in the area.

It is also suggested that the engineer's testimony is further discredited by the testimony of the neighbor who first saw the fire and by cross examination. The neighbor testified that when he arrived at the scene, only one fire was burning — not two as stated by the engineer — and that the fire was south of the fireguard, not north and south as stated by the engineer.

The two versions are literally inconsistent, but the most that can be said of this discrepancy is that it reflects upon the accuracy, not the credibility, of the engineer. Considering the natural and...