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

• Decision Date: 21 January 1889
• Citation: 40 Minn. 60,41 N.W. 301
• Parties: HOFFMAN v CHICAGO, M. & ST. P. RY. CO.
• Court: Minnesota Supreme Court

40 Minn. 60

41 N.W. 301

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

Supreme Court of Minnesota.

Jan. 21, 1889.

(Syllabus by the Court.)

1. A record of the inspection of locomotives kept by a person who is employed by a railroad company for the purpose of making a daily inspection, and ascertaining their condition, is not evidence of such condition except under certain contingencies, not appearing in this case. Usually it can only be used to refresh the memory of a witness.

2. Testimony in this case examined, and held to justify the verdict.

Appeal from district court, McLeod county; EDSON, Judge.

Action by H. H. Hoffman against Chicago, Milwaukee & St. Paul Railway Company, to recover damages for the destruction of property by fire. From an order refusing a new trial defendant appeals.

G. M. Nelson, for appellant.

Hooker, Little & Nunn and F. R. Allen, for respondent.

COLLINS, J.

The plaintiff in this case seeks to recover the value of certain stacks of hay which he alleges were destroyed by a fire caused by the negligent manner of operating one of defendant's locomotives, on the 9th day of October, 1885. The testimony as to the origin of the fire which burned the hay is fully as satisfactory as it was in Karsen v. Railway Co., 29 Minn. 12, 11 N. W. Rep. 122, and Sibley v. Railway Co., 32 Minn. 526,21 N. W. Rep. 732, and of the character usually obtainable in such cases. It tended to show that immediately upon the passing of an east-bound freight train, before it was out of sight, a small fire was seen north of defendant's right of way, and about 150 feet from its track. It spread rapidly in the direction of plaintiff's hay, which was soon burned. No person was seen in the vicinity of the place where the fire started, and it cannot be contended that the finding upon this point in plaintiff's favor is not fully justified by the evidence.

The plaintiff's omission to plow around his stacks of hay, and thus protect them from running fires, does not constitute negligence per se. Whether such a failure amounts to negligence in any case, depends upon circumstances, and is a question of fact for a jury. Karsen v. Railway Co., supra. This disposes of defendant's fourth assignment of error, that the verdict was not justified by the evidence.

The first, second, and third assignments, that the court erred in excluding certain testimony, may properly be considered together, and we see no reason for the appellant to complain of the rulings, many of which were, improperly, in its favor. The origin of the fire having been traced to defendant's locomotive, attached to a freight train going east about noon, a prima facie case of negligence under the statute (section 60, c. 34, Gen. St. 1878) was made out. The burden then rested upon the defendant to overcome the presumption of negligence, and establish by competent testimony the proper construction, good condition, and skillful management of the locomotive involved,-the one attached to the freight train, and which must have set the fire, if reliance is placed upon any part of the testimony relating to its cause. To identify this locomotive as one numbered 135, Moore, a section foreman, testified that his “report” showed it to be 135, run by Engineer Chadwick. The report spoken of was probably one made to his superiors concerning the fire, but, as the...