Hicks v. Chi. & N. W. Ry. Co.

• Court: Wisconsin Supreme Court
• Writing for the Court: NELSON
• Citation: Hicks v. Chi. & N. W. Ry. Co., 215 Wis. 462, 255 N.W. 73 (Wis. 1934)
• Decision Date: 05 June 1934
• Parties: HICKS v. CHICAGO & N. W. RY. CO.

215 Wis. 462

255 N.W. 73

HICKS

v.CHICAGO & N. W. RY. CO.

Supreme Court of Wisconsin.

June 5, 1934.

Appeal from a judgment of the Circuit Court for Adams County; Clayton F. Van-Pelt, Circuit Judge.

Action by Clara Hicks against the Chicago & Northwestern Railway Company. Judgment for plaintiff, and defendant appeals.--[By Editorial Staff.]

Affirmed.

Action by plaintiff, Clara Hicks, against defendant, Chicago & Northwestern Railway Company, to recover damages alleged to have been caused by a fire set by one of defendant's locomotives in use upon its railroad. From a judgment in favor of the plaintiff, the defendant appealed.

This action was originally commenced on January 9, 1933, in the county court of Adams county. Trial was there had to the court and a jury which resulted in a judgment favorable to the plaintiff. From that judgment the defendant appealed to the circuit court for Adams county where a new trial to the court and a jury was had. The jury found that the fire that damaged and destroyed the plaintiff's property was caused by sparks or cinders emitted from the defendant company's engines of train No. 479, on October 6, 1932, and assessed the plaintiff's damages at the sum of $200. Upon the coming in of the verdict the defendant moved (1) for judgment in its favor notwithstanding the verdict; (2) to change the answer to question one from “yes” to “no”; and, in the alternative, (3) to set aside the verdict and grant a new trial because the answer to question 1 is contrary to the evidence, because the court erred in denying defendant's motions for nonsuit and for a directed verdict and for other reasons. All of defendant's motions were denied, and judgment on the verdict was ordered and entered in favor of the plaintiff.J. F. Baker and Llewellyn Cole, both of Milwaukee, for appellant.

Fulton Collipp, of Friendship, and M. S. King, of Wisconsin Rapids, for respondent.

NELSON, Justice.

The principal contentions of the defendant are that the court erred in denying its motions for a nonsuit, for a directed verdict, for judgment notwithstanding the verdict, and in refusing to change the answer of the jury to question No. 1 from “yes” to “no.” All of defendant's contentions are based upon the assertion that the evidence was insufficient to prove to a reasonable certainty that the original fire which concededly spread to plaintiff's premises was set or was communicated directly or indirectly by a locomotive in use upon its railroad. Section 192.44, Stats. It will be necessary therefore to examine the evidence adduced for the purpose of determining whether there is credible evidence from which the jury might reasonably infer that the fire which ultimately spread to the plaintiff's premises was set by a locomotive belonging to the defendant and in use upon its railroad. Trautmann v. Charles Schefft & Sons Co., 201 Wis. 113, 228 N. W. 741.

The following facts are undisputed: Defendant's railroad runs in a northwesterly direction from Grand Marsh to Adams. It diagonally crosses sections 36 and 26, cuts across the northeasterly corner of section 27, and runs across the southwesterly diagonal half of section 22, in a certain township. An east and west highway runs along the quarter line through section 22. A north and south highway runs along the west side of sections 22 and 27. Defendant's railroad crosses the east and west highway mentioned about eighty rods east of the west line of section 22. This crossing is referred to in the testimony as the Prazma crossing. In section 26 there is a marsh which concededly was dry on October 6, 1932. The wind on that day was blowing from the southwest to the northeast at a velocity of twenty-one miles per hour. The fire, about which this controversy centers, started on the northerly or easterly side of defendant's track in section 26 and rapidly spread in a northeasterly direction. The plaintiff is the owner of the northwest quarter of section 24, to which the fire spread. A west or north bound freight train consisting of sixty-nine cars--sixty-two loads and seven empties--drawn by two locomotives left Grand Marsh at 11:32 a. m. and arrived at Adams at 11:45. The distance between the two stations is seven miles. The fire started at a point about midway between the two stations. Opposite the place where the fire started the track was level or slightly down grade in the direction the train was moving. Both locomotives were of a powerful type, and either could have hauled the train with comparative ease. October 6 was the last day of the 1932 chicken hunting season, and hunters in automobiles were observed at the Prazma crossing at the time the freight train passed over it. Both locomotives were inspected at Adams during the afternoon of October 6 and found to be without defects.

The evidence as to when the fire started is conflicting. Both engineers, both firemen, and the brakeman testified that the fire was burning at the time the train approached; that they first observed it when the train was about half a mile or more away; that, when they passed it, it was burning north of defendant's right of way, and that the fire was separated from defendant's tracks by an unburned strip or area. Had the jury believed that testimony, it reasonably could not have inferred that the fire was set by a locomotive belonging to the defendant, since concededly no other locomotive could have set it.

[1] The plaintiff contends that the jury was not required to believe the testimony of the defendant's employees, but had a right to believe the testimony which we shall now review. A Mrs. Prazma, who resided on the east and west road hereinbefore mentioned, some distance east of the Prazma crossing, was out in her farmyard on October 6, 1932, between 10 and 12 o'clock in the forenoon, engaged in splitting wood. At times during the morning she looked in a southeasterly direction toward section 26 and saw no smoke or fire. After the train went by she saw smoke and fire down in that direction. The defendant contends that Mrs. Prazma's testimony was negative in character, was impeached by the physical facts which showed that she was about a mile and a quarter away from the point where the fire started, that between her and such point there were brush and small trees and a small knoll which rendered it impossible for her to see a fire from where she stood in her yard; and that her testimony in other respects was so obviously untrue as to make it incredible. Defendant's arguments would be quite appealing were we permitted to retry the facts. But we can examine the record only for the purpose of ascertaining whether there is any evidence which, if believed by the jury, reasonably permits the inference drawn by it. We think that, looking at all of Mrs. Prazma's testimony, a jury might reasonably conclude that she was in a position during the morning of October 6, 1932, and until after the train went by, to observe whether a fire of the magnitude of this one was burning in the region of section 26; that she was clearly in a position to...