Dean v. Chicago, Milwaukee & St. Paul Ry. Co.

• Decision Date: 16 November 1888
• Parties: SOPHRONIA DEAN <I>vs.</I> CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY.
• Court: Minnesota Supreme Court

Page 413

39 Minn. 413

SOPHRONIA DEAN vs. CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY.

Supreme Court of Minnesota.

November 16, 1888.

Appeal by defendant from an order of the district court for Mower county, Farmer, J., presiding, refusing a new trial. The action was for the destruction of hay and grass on plaintiff's land by fire alleged to have been caused by a locomotive of defendant.

Kingsley & Shepherd, for appellant.

French & Wright, for respondent.

DICKINSON, J.

The evidence justified the conclusion that the fire complained of was set by the defendant's locomotive No. 146. This is a fair, if not the only reasonable, inference from the facts disclosed, showing that the fire started in the plaintiff's open field, about 60 feet from the railroad track, and far from any building or highway, immediately after the passing of the locomotive and train westward; that a strong wind was blowing from the south, and the fire started north of the track; that no persons were in the vicinity; and that there was no apparent cause of the fire except the passing train. There is more reason for contention upon the point as to whether the evidence fully rebutted the statutory presumption of negligence on the part of the defendant, so that the verdict must be regarded as unjustified. Without commenting upon the evidence of several witnesses for the defendant, — other than Anderson, to whose testimony we will hereafter refer, — we will only say, generally, that it tended to show that the engine was provided with the best means for preventing the escape of fire; that it was in good order; and that the engineer and firemen were competent to perform their respective duties. In brief, it may be conceded that such testimony tended to show that there was no negligence on the part of the defendant. But the defendant presented, as a witness, one Anderson, who was shown to be an expert concerning the matters in question. He was the general foreman of the mechanical department of this division of the railroad, and had been a practical locomotive engineer. He testified particularly as to the improved spark-arrester, with which this engine was provided, and the manner of its operation. Referring to this apparatus, he said: "The front end is supposed to be cleaned out at intervals of about thirty or forty miles." After speaking of the qualities of this apparatus, he expressed it as his opinion that, in the ordinary running of the engine, it is not possible for sparks to...