Cont'l Ins. Co. v. Chi. & N. W. Ry. Co.

• Decision Date: 30 March 1906
• Citation: 107 N.W. 548,97 Minn. 467
• Court: Minnesota Supreme Court
• Parties: CONTINENTAL INS. CO. v. CHICAGO & N. W. RY. CO.

97 Minn. 467

107 N.W. 548

CONTINENTAL INS. CO.

v.CHICAGO & N. W. RY. CO.

Supreme Court of Minnesota.

March 30, 1906.

Appeal from District Court, Winona County; Arthur H. Snow, Judge.

Action by the Continental Insurance Company against the Chicago & Northwestern Railway Company. There was verdict for defendant. From an order denying a motion for a new trial, plaintiff appeals. Reversed.

Syllabus by the Court

In an action against a railroad company for damages caused by fire from a locomotive, Gen. St. 1894, § 2700, throws the burden of proof upon the defendant to rebut the presumption of actionable negligence on its part, upon proof by the plaintiff that a fire was kindled upon his lands adjoining a railroad track by sparks from its locomotive.

The defendant may rebut this presumption by sufficient proof of its nonconnection as cause, or of such construction, equipment, maintenance, and operation of the engine as was required in the exercise of case commensurate with all the circumstances of the particular case. Such rebuttal proof must conform as to character and extent to the standard by which in ordinary cases is measured the propriety of a holding by a trial court that a defendant against whom a prima facie case of negligence has been made is free from fault as a matter of law.

The adequacy of such proof by a defendant must also be determined in view of any other facts, tending to show negligence, appearing in the testimony in addition to those sufficient to give rise to the statutory presumption which tend to show negligence.

Unless the rebutting evidence is conclusive as to both the facts and the inferences reasonably to be drawn from them, the question is for the jury.

In this case, the rebuttal testimony is held not to have been sufficient to have justified the trial court in taking the case from the jury, because:

First. The plaintiff introduced affirmative circumstantial evidence of negligence in addition to proof of the facts essential to raise the statutory presumption of defendant's negligence.

Second. The rebuttal testimony depended in part on evidence of witnesses whose credibility was for the jury.

Third. It consisted largely (1) of expert testimony to the effect that no engine could be practically so operated as not to start fires at the distance here involved, which was inconclusive and not entirely consistent with defendant's freedom from negligence; (2) and of expert testimony that the engine was operated in a careful manner, which was based upon too narrow an hypothesis.

The trial court properly excluded from evidence the book of rules of defendant, which contained private rules regulating the conduct of defendant's own business. John Moonan, for appellant.

Brown, Abott & Somsen, for respondent.

JAGGARD, J.

This was an action to recover damages caused by a fire set by the engine of defendant and respondent. The plaintiff and appellant, an insurance company, paid the loss on property insured by it and was subrogated to the rights of the insured against the defendant. At the close of the testimony, the court directed a verdict for defendant. From a motion denying a new trial, this appeal was taken.

The statute of this state (Gen. St. 1894, § 2700) provides that the owner of property burned by fire thrown from an engine can recover damages from the railroad company without being required to show defects in the engine or negligence on the part of employés. The fact of fire is prima facie evidence of negligence. The cases construing this section in this state, and similar statutes in other states, are not harmonious. Many of them hold that it is necessarily for the jury to weigh the statutory presumption of negligence in the balance against the evidence of defendant in rebuttal. Greenfield v. Railway Co. (Iowa) 49 N. W. 95;West Side M. F. I. Co. v. Railway Co. (Iowa) 95 N. W. 193;Glanz v. Railway Co. (Iowa) 93 N. W. 575;Hemmi v. C. G. W. Ry. Co. (Iowa) 70 N. W. 746;G. N. Ry. Co. v. Coates, 115 Fed. 452, 53 C. C. A. 382; Atchison, etc., Ry. Co. v Bales, 16 Kan. 252; Atchison, etc., Ry. Co. v. Geiser (Kan.) 75 Pac. 68;St. Louis, etc., Ry. Co. v. Funk, 85 Ill. 460 (cf. Chicago, etc., Ry. Co. v. Quaintance, 58 Ill. 389);Sappington v. Mo. Pac. Ry. Co., 14 Mo. App. 86, 90;Palmer v. Railway Co., 76 Mo. 217; Huff v. Railway Co., 17 Mo. App. 356;Babcock v. Railway Co., 62 Iowa, 593, 13 N. W. 740,17 N. W. 909; Id., 72 Iowa, 197, 28 N. W. 644,38 N. W. 628; Hagan v. Railway Co., 86 Mich. 615, 49 N. W. 509; 2 Thompson, Commentaries of the Law of Negligence, p. 840. Railway companies argue against this rule that it amounts to judicial legislation, inasmuch as it converts a presumption, rebuttable under the statute, into an unrebuttable one in effect, and that it deprives them in every instance of the right to try the force of the rebuttable evidence against the presumption before the court, and enables incendiaries in practical result to sell them their crops and improvements at a price fixed by hostile juries.

According to other authorities, rebuttal by proof that the engine was properly constructed, equipped, inspected, maintained, and operated is as broad as the presumption of negligence, and justifies the trial court in directing a verdict for defendant. Daly v. Railway Co., 43 Minn. 319, 45 N. W. 611;Rosen v. Railway Co., 83 Fed. 300, 27 C. C. A. 534;Anderson v. Railway Co. (Or.) 77 Pac. 119;Indiana, etc., Ry. Co. v. Craig, 14 Ill. App. 407;Gulf, etc., Ry. Co. v. Benson, 69 Tex. 407, 5 S. W. 822,5 Am. St. Rep. 74; M. K. T. Co. v. Stafford (Tex. Civ. App.) 31 S. W. 319;Menominee Co. v. Milwaukee, etc., Ry. Co., 91 Wis. 447, 65 N. W. 176;Smith v. N. P. Ry. Co., 3 N. D. 17, 23, 53 N. W. 173;Louisville, etc., Ry. Co. v. Marbury Lumber Co. (Ala.) 28 South. 438. Cf. Kurz, etc., Ice Co. v. Railway Co., 84 Wis. 171, 53 N. W. 850;Johnson v. Railway Co., 1 N. D. 354, 48 N. W. 227; 2 Thompson, Commentaries on the Law of Negligence, 796, note 30. In language, more picturesque than temperate, Judge Thompson has insisted that the rule last stated involves a complete obfuscation of the line which separates the province of the court and the province of the jury, and that here is a case where evidence of a cogent nature is opposed to the testimony of the agents and employés of a railroad company, who, as experience will show, will, in almost every case swear up to the necessary mark and to whom nothing is more common than to lie on the witness stand. ‘In nearly every such case the railway company will come forward with its creatures and prove that the engine was a good one, that it was suitably equipped with appliances to prevent scattering fire; and many courts have held such evidence to constitute a defense, and, assuming its truthfulness, have taken the question from the jury, thus performing their office in passing upon the truthfulness of the evidence in the case. The meadow, the stock or the the barn of the miserable farmer has been burned up by the railroad company, for its own profit, and the farmer, in his misery and wretchedness, finds himself without any other remedy than to rail at the lawyers and judges, or to put dynamite on the railroad track.’ 2 Thompson, Commentaries on the Law of Negligence, pp. 840, 844, 796.

The contrast of the two views was well illustrated and judicially stated in a leading recent case, Great Northern Ry. Co. v. Coates, 115 Fed. 452, 53 C. C. A. 382. Thayer, J., for the majority of the court, held that where the company produced testimony not directly contradicted, tending to show that the locomotive was properly constructed, equipped, inspected, and operated, it was the province of the jury to determine whether the statutory presumption of negligence was overcome. ‘We cannot well understand,’ he said, ‘upon what theory the statement of persons who are in charge of a locomotive when it occasioned a disastrous fire, that it was properly and prudently managed, etc., must be accepted by a court as conclusive, and as overcoming, as a matter of law, the presumption of negligence raised by other testimony. It would seem, rather, that the triers of the fact ought, in such a case, to consider how far the interest of such witnesses-their natural desire to absolve themselves from all blame-may have colored their evidence, and how far their statements are consistent with other facts and circumstances which have been proven. If a court undertakes to weigh such evidence, and say that the witnesses are credible, and also decide as to the effect of the proof, it plainly assumes the functions of the jury or at least a function which is discharged by the jury in other cases.’ On the other hand, Sanborn, J., dissenting, after a reference to a number of cases supporting his views, and a consideration of the nature of rebuttable presumptions, held that: ‘The result is that it was, in the first instance a question of law for the court below in this case whether or not the presumption of negligence in the operation of the defendant's locomotive, which arose from the scattering of the sparks or coals and the setting of the fire, was overcome by the testimony for the defendant; and if the testimony of its proper employés that there was no negligence in the operation of the engine was uncontradicted, and was as broad as the presumption, then that the presumption was overcome, as a matter of law, and it was the duty of the trial court to withdraw this charge of negligence from the consideration of the jury on the motion of the defendant.’ The opinion of the majority of that court was followed and approved in all respects in the recent and well-considered case of Atchison, etc., Ry. Co. v. Geiser (Kan.) 75 Pac. 68. Much of the apparent inconsistency between these two lines of cases arises from the natural but incorrect extensions of formulae of the rule beyond the just determination of particular states of facts into general propositions of law. Thus in the federal case quoted, the...