Higgs v. Minneapolis, St. P. & S. S. M. Ry. Co.

• Decision Date: 08 January 1908
• Citation: 114 N.W. 722,16 N.D. 446
• Court: North Dakota Supreme Court
• Parties: HIGGS v. MINNEAPOLIS, ST. P. & S. S. M. RY. CO.

16 N.D. 446

114 N.W. 722

HIGGS

v.MINNEAPOLIS, ST. P. & S. S. M. RY. CO.

Supreme Court of North Dakota.

Jan. 8, 1908.

Syllabus by the Court.

It is not error to deny a motion for a directed verdict or for a judgment notwithstanding the verdict, when the evidence shows a conflict as to whether the cause of action pleaded has been proven.

Photographs, duly verified, are admissible in evidence as aids to the jury in arriving at an understanding of the evidence or of the situation or condition or location of objects or premises, material and relevant to the issues.

The weight to be given to such photographs by the jury is not of conclusive effect as a matter of law, but depends upon the skill, accuracy, and manner in which taken, and they are to be considered under the same tests as other evidence.

Appeal from District Court, Dickey County; Frank P. Allen, Judge.

Action by Blanche Higgs, administratrix of J. W. Higgs, against the Minneapolis, St. Paul & Sault Ste. Marie Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.Geo. T. Webb and Alfred H. Bright, for appellant. W. S. Lauderand and Austin & Axtell, for respondent.

MORGAN, C. J.

This is an action for damages for the destruction of hay and grass by a prairie fire, alleged to have been caused by the defendant's negligence. The defendant's negligence as alleged in the complaint is based upon: (1) Negligently permitting dry and combustible grass and weeds to accumulate and remain upon its right of way. (2) Negligence in the construction of the engine, by reason of which sparks emitted therefrom, which caused the destruction of the property and the consequent damages. (3) Negligent operation of the engine by the defendant's employés. The answer was a general denial. The jury found for the plaintiff, and assessed damages at the sum of $1,753.05. Motions for a new trial and for judgment notwithstanding the verdict were denied. Defendant has appealed from the judgment entered on the verdict.

There is only one assignment of error, and that is that the trial court erred in refusing to direct a verdict for the defendant at the close of the taking of the testimony. The ground on which a reversal of the judgment is claimed is that the testimony conclusively shows that the fire which destroyed the plaintiff's hay did not originate on the defendant's right of way, and therefore the allegation of the complaint that the defendant was negligent in permitting dry and combustible materials to remain on its right of way was not sustained, and that the condition of the right of way became, for that reason, immaterial. Plaintiff's evidence, given by several witnesses, was specific that the fire started on the right of way and as to the place on the right of way where the fire started, and where it left the right of way and reached plaintiff's property some distance away. Some of these witnesses were at the scene of the fire very soon after it started, and testified that it started on the right of way a very few feet from the railroad track. The defendant's witnesses testified, after an examination of the course taken by the fire, that it did not start on the right of way. The defendant, however, contends that the plaintiff's witnesses, who testified that the fire originated on the right of way, are all mistaken, or testified falsely, willfully, and relies as conclusive proof of this fact on photographs taken of the right of way at the point where it is claimed by the plaintiff that the fire originated. These photographs were taken on April 2, 1904, and the fire occurred on November 15, 1903. They were identified by the photographer who took them as accurate photographs of the right of way at the place where it is claimed the fire originated and of the right of way extending each way from that point for a long distance. It is claimed that these photographs show that there was no burned ground at the place where it is claimed by the plaintiff that the fire originated, or at any place near there, and on the contrary that the right of way at these places is covered with grass. The photographs do show some burned ground under the fence at the limit of the right of way, but this is explained by defendant's witnesses as having been burned by the fire burning back. From this evidence we are asked to give conclusive effect to the evidence as indicated by the photographs, and to hold that there was no conflict in the evidence. Upon a review of the evidence we are positive in our conclusion that there is a material conflict in the evidence as to whether the fire originated on the right of...