Creighton v. Chicago, Rock Island & Pacific Railway Company

• Decision Date: 09 April 1903
• Docket Number: 12,697
• Citation: 94 N.W. 527,68 Neb. 456
• Parties: JOHN A. CREIGHTON v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY
• Court: Nebraska Supreme Court

94 N.W. 527

68 Neb. 456

JOHN A. CREIGHTON v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY

No. 12,697

Supreme Court of Nebraska

April 9, 1903

ERROR to the district court for Douglas county: IRVING F. BAXTER DISTRICT JUDGE. Affirmed.

Affirmed.

Charles Ogden and Joel W. West, for plaintiff in error.

James M. Woolworth, M. A. Low, W. F. Evans and William D. McHugh contra.

OLDHAM C. BARNES and POUND, CC., concur.

OPINION

OLDHAM, C.

This was an action for damages for the value of certain buildings situated on plaintiff's farm, which were destroyed by fire alleged to have been set out by the negligent operation of one of defendant's engines. The cause was originally instituted in the county court of Douglas county and taken by appeal to the district court. It was tried in the district court, by consent of the parties, on the pleadings filed in the county court.

The petition alleges the ownership and destruction of a barn and granary by fire negligently set out by defendant. The answer was a general denial. On issues thus joined there was a trial to a jury, verdict for defendant, judgment on the verdict, and plaintiff brings error to this court.

There was no material dispute in the testimony introduced at the trial of the cause. Plaintiff's evidence showed that almost immediately after one of defendant's trains had passed through the premises on which the buildings were situated, a fire broke out on the right of way, which spread rapidly on account of a strong wind that was blowing, and reached the buildings before the witness who saw the fire start and defendant's section hands could control the fire. There was no dispute as to the amount of the loss. Defendant, on the other hand, introduced testimony tending to show that the engine propelling the train was fully and properly equipped with the best and most modern spark arresters and other appliances for the prevention of the escape of fire from the engine, and that the engine was operated in a skillful manner by a competent and prudent engineer and fireman. This condition of the testimony presented a question of fact as to whether the fire originated by any negligence on the part of the defendant.

The first complaint called to our attention in the brief of plaintiff in error is as to the action of the trial court in refusing to permit plaintiff to show that the claim agent of defendant paid the owner of the grain which was stored in plaintiff's granary for the loss thereof, destroyed by this same fire.

An amicable adjustment of the controversy, even as between the parties themselves, is not competent evidence to establish a liability. Much less would an amicable adjustment with one not a party to a settlement be admissible against the other merely because the controversy arises from the same cause. Courts look with favor on the rights of parties to amicably settle differences, and they may do so with one or more...