Hayes v. Chi., M. & St. P. Ry. Co.

• Decision Date: 02 December 1890
• Citation: 47 N.W. 260,45 Minn. 17
• Court: Minnesota Supreme Court
• Parties: HAYES v CHICAGO, M. & ST. P. RY. CO.

45 Minn. 17

47 N.W. 260

HAYESvCHICAGO, M. & ST. P. RY. CO.

Supreme Court of Minnesota.

Dec. 2, 1890.

(Syllabus by the Court.)

1. The testimony in this case, which was brought to recover damages for the destruction of standing timber by fire, examined, and held sufficient to justify certain special findings, as well as the general verdict, rendered by the jury.

2. Carner v. Railway Co., 43 Minn. 375,45 N. W. Rep. 713, followed as to the proper rule for the ascertainment of damages in such an action.

Appeal from district court, Mower county; FARMER, Judge.

Kingsley & Shepherd, for appellant.

French & Wright, for respondent.

COLLINS, J.

In this action, which was brought to recover for standing timber alleged to have been destroyed by a fire set by one of appellant's locomotives, the respondent, plaintiff, had a verdict. The jury also found, specially, that the fire originated on appellant's right of way from coals or sparks scattered by the locomotive in question; that the locomotive was equipped with the latest and most approved appliances for preventing the escape of fire; and that it was in perfect condition at the time. It was also found, specially, that the engineer in charge and his fireman were not skillful and competent men; that they did not manage and operate the locomotive carefully and skillfully; and further that appellant did not exercise such care in the construction, maintenance, and use of the locomotive on this occasion as a man of ordinary prudence would have exercised under like circumstances. The appeal is from an order refusing a new trial. It is the contention of appellant's counsel that the verdict was not justified by the evidence, and that the court erred when instructing the jury as to the measure of damages, should it find plaintiff entitled to recover at all. One or two of the special questions submitted to the jury were so drawn that the answers seemed somewhat inaccurate, but it is evident that the jury found that there was no lack of proper appliances to prevent the escape of sparks and coals, and that there was no defect in the condition of the locomotive whatever; nor were the engineer and fireman declared to be, usually and generally, careless or unskillful or incompetent. The finding was simply that on this occasion, and with the conditions then existing, these persons did not operate and manage the locomotive with care and skill,-a far different thing from asserting that they were habitually careless, or naturally incompetent. On the day of the fire, a very high wind prevailed, and everything was in a dry condition. This is admitted by all of the witnesses. On defendant's right of way, about the place where the fire is said to have originated, the grass had been cut down, but not removed. It lay on the ground in swaths, and had become exceedingly combustible. Not far from 11 o'clock in the forenoon an extra train ran over the road in an easterly direction. About 12, the regular freight, drawn by the locomotive in question, went westwardly. None of plaintiff's witnesses were able to say that they observed the fire at the time it started, but several testified that they saw it immediately after the freight train passed, when it had just commenced to spread, and before the volume of smoke, which came from it, became dense or great. One of these witnesses, working near by, purposely looked along the railway for fire soon after the extra passed, just prior to the arrival of the freight train, and saw none, nor did he see any persons about the right of way, or in the...