Farnum v. Montana-Dakota Power Co.

• Decision Date: 04 March 1935
• Docket Number: 7339.
• Parties: FARNUM v. MONTANA-DAKOTA POWER CO.
• Court: Montana Supreme Court

43 P.2d 640

99 Mont. 217

FARNUM v. MONTANA-DAKOTA POWER CO.

No. 7339.

Supreme Court of Montana

March 4, 1935

Appeal from District Court, Custer County; S.D. McKinnon, Judge.

Action by Elizabeth B. Farnum against the Montana-Dakota Power Company. Judgment for plaintiff, and defendant appeals.

Affirmed.

Hildebrand & Warren, of Glendive, D. L. O'Hern, of Miles City, and Paul J. McGough, of Minneapolis, Minn., for appellant.

George W. Farr and Rudolph Nelstead, both of Miles City, for respondent.

ANDERSON Justice.

Plaintiff brought this action to recover damages for the loss and destruction by fire of certain personal property belonging to four others who had assigned their respective claims to plaintiff. The first cause of action relates to the destruction of a silage cutter and equipment; the second is to recover for the destruction of a corn conveyor; the third for the loss of a 5-horse power motor; and the fourth for the loss of a thresher belt.

Plaintiff resided on and operated a ranch lying easterly from Miles City along the Yellowstone Trail. On September 8, 1932, the husband of plaintiff and employees were engaged in filling a silo. The articles of personal property above mentioned were then on the ranch of plaintiff, being used in this operation. The silo was located in the center of a circular barn. Near the barn were some stacks of hay and one of straw. About mid-afternoon of the day in question, a fire was noticed by one of plaintiff's employees in the strawstack. It spread from the strawstack to the haystacks and from there to the barn, destroying all of this property, including the articles of personal property, the subject-matter of this suit.

Leading from the Yellowstone Trail to the buildings on plaintiff's ranch is a lane along which was a power line the property of the defendant, from a transformer to the buildings of plaintiff. Up to the transformer the power line carried a voltage of 6,600, and beyond the transformer a load of 110 volts was carried. Along the power line and under it were certain trees, which at various times had been trimmed by the defendant company, the last occasion on which this was done prior to the date of the fire being in the month of December, 1931. The husband of the plaintiff had consented to the trimming of the trees along and under the power line and authorized defendant's employees to cut down any and all of the trees which would tend to interfere with the power line, and some seven or eight were so cut down and removed. Defendant had advised the husband of plaintiff not to trim the trees. One tree, among others, was left standing along the power line, the branches of which extended over and above it, so that when the wind was blowing the limbs of the tree would come in contact with the wires of the power line. The line consisted of two galvanized iron wires, uninsulated and mounted on cross-arms 39 inches apart. The distance from the power line to the point where the fire was first noticed burning in the strawstack some 15 feet above the ground was approximately 87 1/2 feet. On the day in question a strong wind was blowing from the northwest toward the tree last mentioned and from there in the direction of the strawstack.

The owners of the various articles of personal property involved in this suit had either loaned or rented them to plaintiff for use in the filling of the silo, and, as stated, had assigned their claims to plaintiff. This action does not involve the loss or destruction of the barn or any other property owned by plaintiff.

Plaintiff charged the defendant with negligence in the operation of its electrical transmission line, in that "the limbs of said tree could and would when a wind was blowing from a northerly or westerly direction come in contact with said electrical transmission wires, and that said wires being uninsulated could and would set fire to said tree, and that fire from said tree could and would be transmitted therefrom to said property, and knowing all of these things, it carelessly permitted said wires to be and remain in close proximity to the said tree and its branches." The defendant denied all negligence on its part.

The evidence disclosed that the strong wind blowing from the northwest continued during the afternoon and evening of the day of the fire. Numerous witnesses testified that on the evening of that day, after darkness had fallen, they observed limbs blazing on the tree; one or more limbs were found beneath it which had been burned off and the ends of which were charred. Burning embers from the tree were observed traveling in the direction of the strawstack. The witnesses quite generally agreed that the wind was not of the same intensity in the evening as it was in the afternoon, but they observed these embers traveling varying distances from the location of the power line; 60 to 65 feet was the maximum distance these embers or sparks traveled in the evening according to the testimony.

The husband of plaintiff testified that at the time the strawstack was first observed to be burning, he went to the pump house for the purpose of securing water to put out the fire. The pump located therein was operated by an electric motor, and he found that no electricity was then available for operating the motor, and that all the power lines leading from the transformer to his house were "dead." He also testified that at the time the trees were last trimmed, in December, 1931, the employees of the company did not trim the limbs on the tree in question. He said in the course of his testimony: "They said they would have to cut their wires to cut that tree. They left the branches of that tree over the wires at that time." This witness testified that he had observed twigs and branches burning on trees along the power line prior to the evening of September 8, 1932, and that he had reported the condition along the lane to employees of defendant. An expert witness testified on behalf of the plaintiff that a wind, causing the branches of the tree to come in contact with one of the uninsulated wires, could cause the branches of the tree to burn if the other wire was grounded, and that the fact that a blaze was observed was evidence that such a condition existed.

Defendant sought to escape liability by showing that immediately before the fire occurred an east-bound Milwaukee freight train passed the farm buildings of plaintiff. The center line of the right of way of the Milwaukee railroad over which this train passed was at the nearest point 1,420 feet from the strawstack, and by extending a line from the point on the strawstack where the fire was first observed to the tree in question along the power line and on the right of way of the railroad the distance was 1,750 feet.

The trial of the cause resulted in a verdict and judgment in favor of plaintiff. A motion for a new trial was made, heard, and denied. The appeal is from the judgment.

Defendant made a motion for nonsuit at the close of plaintiff's case, and a motion for a directed verdict at the close of the evidence, upon the ground "that from the evidence it appeared that the negligent acts and omissions of the plaintiff directly, actually and proximately contributed to the fire in question and to the damage or injury sustained by the plaintiff."

Defendant did not plead contributory negligence on the part of the plaintiff. It seeks to invoke the rule, long adhered to by this court and recently restated in the case of Hughey v Fergus County, 98 Mont. 98, 37 P.2d 1035, 1037, as follows: "'When the circumstances attending the injury, as detailed by the plaintiff's evidence, raise a presumption that he was not, at the time, in the exercise of due care, he has failed to make out a case for the jury. The burden is then upon him, and if he fails to introduce other evidence to remove this presumption, he is properly nonsuited.' George v. Northern Pacific Ry. Co., 59 Mont. 162, 196 P. 869, 870. Otherwise stated, the rule is that when 'plaintiff's own case presents evidence which, unexplained, makes out prima facie contributory negligence upon his part, there must be further evidence exculpating him or he cannot...