Johnson v. Chicago, Milwaukee & St. Paul Railway Co.
| Decision Date | 18 July 1883 |
| Citation | 16 N.W. 488,31 Minn. 57 |
| Parties | Louis W. Johnson v. Chicago, Milwaukee & St. Paul Railway Company |
| Court | Minnesota Supreme Court |
Appeal by defendant from a judgment of the district court for Dakota county, where the action was tried before McCluer, J., and a jury, and defendant's motion for a new trial was denied. The case is stated in the opinion.
When the cause was called for trial, defendant made an application for a continuance to the next term of court. This application was based upon the affidavit of defendant's attorney which stated, substantially, that at the time when the fire occurred there was "a Norwegian girl or woman" employed in the Niskern House as a servant; that if she were present and examined in court at the trial, deponent believed that she would testify that, on the evening of the fire, the hostler employed about the Niskern House and barn was too intoxicated to be able to attend to his duties properly or prudently; that said hostler, while so intoxicated and in opposition to her efforts to dissuade him from so doing, went into the barn, carrying a lighted lantern and smoking a lighted cigar; that shortly after his so going into the barn the fire broke out, and that shortly afterward and during the progress of the fire, the said hostler was seen in the vicinity in an apparently anxious and greatly excited and distressed condition, and in a few days disappeared from Farmington; that deponent used all due diligence investigating the cause of the fire, but had no knowledge or information of the above facts, provable by said witness alone, till about six days before the calling of the cause for trial, and had not yet been able to ascertain the woman's name and residence, but believed that her attendance could be procured for the next term of court. The application was denied.
Judgment affirmed.
W. H Norris and D. S. Wegg, for appellant.
Wm Hodgson, for respondent.
This action was brought to recover for the burning of a barn and other property of the plaintiff, which is alleged to have been caused by fire negligently suffered to escape from a locomotive of the defendant. The fire occurred in the village of Farmington. It commenced either in a pile of corn-stalks, lying in an alley and against the barn of one Niskern, which stood just outside the depot grounds of the defendant, or else it commenced within the barn. The wind was very violent, and fire was communicated from Niskern's burning barn to another barn standing near, and thence to that of the plaintiff, which stood, perhaps, 60 feet from that of Niskern. By the verdict of the jury it is determined that the fire was communicated from defendant's engine No. 45, of which one Driscoll was engineer, to the corn-stalks, and thence to Niskern's barn. This conclusion of facts is well sustained by the evidence.
Special findings of fact were returned by the jury in answer to questions put to them, which are as follows:
One of the two principal questions presented in the case is as to whether the evidence sustains this last special finding, and upon which alone the general verdict against the defendant rests.
It appears that the engine was being operated upon a track about 180 feet from the barn and corn-stalks of Niskern; that the volume of sparks thrown out by an engine, and the height to which they are projected, depend a good deal upon the manner in which the engine is worked; that the harder an engine is worked, the more sparks are discharged and the higher they are thrown. Several witnesses testified to the fact that a very unusual volume of sparks was discharged from the engine on this occasion. We deem this to be evidence of negligence, although not of the most satisfactory or conclusive character in this case; and so it has often been considered in adjudicated cases. Caswell v. Chicago & N.W. Ry. Co., 42 Wis. 193, 198; Henry v. Southern Pacific R. Co., 50 Cal. 176; Great Western R. Co. v. Haworth, 39 Ill. 346; Toledo, etc., Ry. Co. v. Maxfield, 72 Ill. 95, 98.
But of more importance, in our estimation, is this: By force of Gen St. 1878, c. 34, § 60, the defendant was presumed to have been negligent when it was shown that the injury was caused by fire thrown from the engine; and the burden rested upon the defendant to prove the exercise of such care as the circumstances required. Karsen v. Milwaukee & St. Paul Ry. Co., 29 Minn. 12, 11 N.W. 122; Sibilrud v. Minneapolis & St. L. Ry. Co., Id. 53. We cannot say that the conclusion of the jury, that the evidence did not show such care, is not warranted by the case. The only evidence upon this point, save that which...
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