Kalz v. Winona & St. Peter Railway Company
| Decision Date | 22 May 1899 |
| Docket Number | 11,594,11,595 - (74,77) |
| Citation | 79 N.W. 310,76 Minn. 351 |
| Parties | AUGUST KALZ v. WINONA & ST. PETER RAILWAY COMPANY |
| Court | Minnesota Supreme Court |
Action in the district court for Brown county by the administrator of the estate of Clara Kalz, deceased, to recover $5,000 damages on account of the death of decedent. The case was tried before Webber, J., and a jury, which rendered a verdict in favor of plaintiff for $1,250. Upon defendant's alternative motion for judgment notwithstanding the verdict or for a new trial, the court made an order denying judgment and granting a new trial. From this order defendant appealed and plaintiff appealed therefrom so far as it granted a new trial. Reversed.
Motion for Judgment notwithstanding Verdict -- Denial of Judgment -- Appeal.
Where in accordance with the provisions of Laws 1895, c. 320, either party has moved the trial court to direct a verdict in his favor, which motion has been denied, and thereafter moves the court that judgment be entered in his favor notwithstanding a verdict against him, or for a new trial, and the court denies the motion for judgment, but grants (or denies) the motion for a new trial, the moving party may appeal from the order as a whole, and have reviewed in this court that part which denied his motion for judgment.
Death by Wrongful Act -- Fire upon Right of Way -- Verdict.
Held, in an action brought to recover damages on account of the fatal burning of plaintiff's intestate, his infant daughter, by means of a fire which had been set upon defendant's right of way for the purpose of consuming the withered grass thereon, that the trial court erred when, at the close of the evidence, it refused to direct a verdict in favor of defendant in accordance with the motion made by its counsel, and also erred when it denied the subsequent motion for judgment.
Jos. A. Eckstein, for plaintiff appellant.
Brown & Abbott, for defendant appellant.
Cross appeals in an action brought to recover damages on account of the fatal burning of plaintiff's intestate, his daughter, aged three and one-half years, her clothing having caught fire from a fire set upon defendant's right of way for the purpose of consuming the withered grass and other rubbish which had accumulated thereon. The plaintiff had a verdict, and upon a settled case defendant's counsel made the alternative motion provided for in Laws 1895, c. 320. In its subsequent order the court below denied the motion in so far as it related to ordering judgment in defendant's favor, but it granted a new trial, whereupon plaintiff's counsel appealed from that part of the order last referred to, while counsel for defendant appealed from the entire order.
It has been suggested that, as defendant prevailed in so far as it moved for a new trial, the order is not appealable as a whole. Although chapter 320 has often been under consideration in this court, the exact question presented by this suggestion has never been before us. In St. Anthony Falls Bank v. Graham, 67 Minn. 318, 69 N.W. 1077, the plaintiff's alternative motion in the court below was disposed of precisely as was defendant's in the case at bar. It was held that plaintiff could not appeal from that part of the order which denied the motion for judgment notwithstanding the verdict. In Oelschlegel v. Chicago G.W. Ry. Co., 71 Minn. 50, 73 N.W. 631, the motion was, upon a settled case, to set aside the verdict, and for judgment notwithstanding the verdict, and it was held that no appeal would lie from an order denying the motion. In the recent case of Savings Bank of St. Paul v. St. Paul Plow Co., supra, page 7, it was held that an order denying a motion that a trial court change its conclusions of law, and for judgment notwithstanding such conclusions, is not appealable.
The statute (chapter 320, supra) expressly provides that on appeal from an order granting or denying a motion for a new trial in an action in which a motion has been made at the trial, by either party, to direct a verdict, this court may order judgment to be entered in favor of the party who moved for such verdict, if it appears from the testimony that he was entitled thereto. This portion of the 1895 act certainly confers on the party whose motion for a directed verdict is wrongfully denied, and who thereafter makes the blended motion provided for, the right to have the question covered by his motion reviewed on appeal from an order granting or denying a new trial, and to secure an entry of the proper judgment. The construction we have placed on the statute is the only one which will protect the moving party, and give him an opportunity to have reviewed the rulings of the trial court when it refuses to direct a verdict, and then denies that part of the blended motion based on such refusal. The moving party may appeal from the whole order, although his motion has been granted in part; and on such appeal this court will review the action of the court below denying the motion for judgment.
From the evidence produced at the trial it appeared that on the day of the casualty one of defendant's section foremen set a fire on the right of way south of the track several hundred feet east of a point opposite to where the child was found shortly after it had been burned. The strip to be burned was but a few feet in width. There was not much material on the ground to be consumed, and at places it was necessary to scatter hay that the rubbish might be cleaned off. On the south line of this right of way was a substantial wire fence, and south or outside of this fence was open common upon which the town cattle had grazed all summer. It was undisputed that outside the fence the grass had been eaten so closely by the cattle that there was nothing to burn except little skirtings about the fence posts, -- a few blades, which had grown so closely to the posts that they were beyond the reach of the grazing animals. Between the posts the line of combustible material was irregular, for in places the cattle had been able to get their heads under the lower wire, and thus feed a very little on the right of way. The fire burned in a westerly direction, and was confined to the right of way practically, there being no fuel for it outside. Taking the first 100 feet east of where the child was found, the fire had spread outside of the fence three or four times from a fraction of an inch up to six inches. East thereof forty or fifty feet it had gone outside twelve inches at two different places. About 4 p.m. it appeared to have died out entirely, and the section men paid no more attention to it.
The plaintiff's daughter, her brother Gustav, aged eight years, John Douth, aged six years, and a Lessner boy, had been playing in the plaintiff's yard that afternoon which yard was a trifle over 100 feet from defendant's right of way, and evidently had not been absent more than an hour, when plaintiff's son ran to the house with the information that the little girl's clothing was on fire. She was found at the point before mentioned, about thirty feet from the west end of the tract which had been burned...
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