Farrell v. Minneapolis & R. R. Ry. Co.

• Court: Supreme Court of Minnesota (US)
• Writing for the Court: BUNN
• Citation: 121 Minn. 357,141 N.W. 491
• Decision Date: 16 May 1913
• Parties: FARRELL v. MINNEAPOLIS & R. R. RY. CO.

121 Minn. 357
141 N.W. 491

FARRELL
v.
MINNEAPOLIS & R. R. RY. CO.

Supreme Court of Minnesota.

May 16, 1913.

Appeal from District Court, Cass County; Homer B. Dibell, Judge.

Action by Andrew Farrell against the Minneapolis & Rainy River Railway Company. Verdict for plaintiff, and defendant moved for judgment notwithstanding the verdict or for new trial. From an order denying the motion for judgment, and also the motion for new trial on condition that plaintiff consent to a reduction, to which reduction plaintiff consented, defendant appeals. Affirmed.

Syllabus by the Court

Two independent fires joined, and together proceeded to plaintiff's land and destroyed standing timber. Held, the evidence was sufficient to sustain a verdict that one of the fires was started by a locomotive engine of defendant.

Though the other fire was not started by a locomotive of defendant, the evidence is sufficient to show that this fire had been burning for several days on and along defendant's right of way, that defendant knew this, and knew or ought to have known that it was likely to spread to plaintiff's land and to destroy his timber, if ordinary care was not taken to prevent it.

Under such circumstances, defendant owed plaintiff the duty of using ordinary care to prevent the destruction of his timber by the fire, and the evidence justifies the finding of the jury that defendant was negligent in this respect.

Having started the first fire, and by its negligence allowed the other fire to spread and join it, defendant is liable for the damage caused by the fires after they joined.

There was no error in the instructions to the jury or in the rulings on the admission of evidence.

The damages are not excessive.

[141 N.W. 491]

Powell & Simpson, of Minneapolis (Ernest C. Carman, of Minneapolis, on the brief), for appellant.

George H. Spear, of Duluth (Kingman & Wallace, of Minneapolis, of counsel), for respondent.

BUNN, J.

This action was to recover damages to standing timber of plaintiff, caused by fire alleged to have been started by a locomotive of defendant. The complaint also alleged that defendant negligently allowed inflammable materials to accumulate on its right of way, and negligently failed to control or extinguish fires on such right of way, and permitted them to escape and spread to plaintiff's land. The answer was in substance a general denial, and alleged that a general forest fire was the cause of the destruction of plaintiff's trees.

The trial resulted in a verdict for plaintiff in the sum of $1,800. Defendant moved for judgment notwithstanding the verdict or for a new trial. The motion for judgment was denied, and the motion for a new trial denied on condition that plaintiff consent to a reduction of the verdict to $1,300. Plaintiff consented to this reduction. Defendant appealed from the order.

It is claimed generally by defendant that the trial court should have ordered judgment notwithstanding the verdict, or at least have granted a new trial. Defendant offered no testimony at the trial, and the case stands on the evidence introduced by plaintiff.

The land of plaintiff over which the fire spread which destroyed his timber was 160 acres, located half a mile north from defendant's right of way at a point where the evidence showed a fire started. This fire was first noticed on the right of way some 10 minutes after one of defendant's trains had passed the point, and it rapidly spread over the dry swamp between the right of way and plaintiff's land. Before it reached this land, it was joined by another fire, which had been burning on and near the right of way some distance to the west. After the the two fires joined, they passed to plaintiff's land and destroyed his timber.

[1] 1. As to the first fire, we hold, as did the trial court, that the evidence was sufficient to justify the conclusion that it was set by the locomotive that had just passed. The locality was uninhabited, the fire was discovered in the dry grass on and adjacent to the right of way almost immediately after the train passed, and other causes were fairly negatived. The suggestion that the whole country was ablaze with forest fires, and that this fire came as a part of a general conflagration, does not find support in the evidence, which does not show any other fire in the vicinity at the time, except the one to the west before mentioned.

[2] 2. As to the last-named fire, the one burning some distance west, which joined the first fire, the trial court held that the evidence

[141 N.W. 492]

was not sufficient to warrant submitting to the jury the question whether it was started by one of defendant's locomotives. The defendant's principal claim on this appeal is that it is not liable in this case because it was not responsible for this fire. The doctrine of Cook v. M., St. P. & S. Ste. M. R. Co., 98 Wis. 624, 74 N. W. 561,40 L. R. A. 457, 67 Am. St. Rep. 830, is invoked. In...