Mathews v. Great Northern Ry. Co.
| Decision Date | 03 November 1897 |
| Docket Number | 6731 |
| Citation | 72 N.W. 1085,7 N.D. 81 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Williams County; Morgan, J.
Action by K. I. Mathews against the Great Northern Railway Company for damages for the destruction of hay and grass by fire negligently set out by defendant. From a judgment on a verdict directed for defendant, plaintiff appeals.
Reversed.
Judgment of the District Court reversed, and a new trial ordered.
N. A Stewart and J. H. Bosard, for appellant.
W. E Dodge, for respondent.
The appeal in this case is taken from a judgment based upon a verdict in favor of the defendant, directed by the court. The action was to recover damages for the destruction of hay and standing grass, by fire, alleged to have been negligently set out by the defendant. In his complaint the plaintiff did not charge that the engine was lacking in proper appliances, or was out of repair, but averred that the carelessness which caused the fire was that of the servants and employes of the defendant in the operation of the train. The only evidence of negligence was the arbitrary presumption thereof from the mere fact that the defendant's engine started the fire. This, however, was not overthrown by any countervailing proof, the defendant not offering any testimony on this point. That a prima facie case of negligence would have been made out had the allegations in the complaint been as broad as the presumption is undisputed. But it is contended that the presumption of negligence, whether resting upon the decisions of the courts or express statutory enactment, does not arise in a case in which the plaintiff has so narrowed his charge of carelessness as to exclude one or more grounds of liability. Counsel's argument on this point was ingenious, but it has not convinced us. This rule which casts upon the defendant in cases of this kind the burden of disproving every conceivable form of negligence where the setting out of a fire by the defendant is proved, is a rule of evidence having no connection with any question of pleading. Under a complaint sufficiently broad, counsel for defendant must concede that a verdict which found specifically that the defendant's employes were guilty of negligence in operating the engine would be supported by the evidence, although the case disclosed no other proof of negligence than the mere fact that the engine started the fire, there being no rebutting evidence in the case. In other words, proof that the defendant set out the fire is sufficient evidence that the engine was negligently handled. If not, then it is not evidence of any carelessness whatever. If it is not evidence of negligence in any one respect, how can a verdict rest upon it at all? Counsel's argument strikes a blow at the very existence of the rule that a prima facie case is made out when the fact that the defendant is responsible for the fire is shown. If the plaintiff is willing to take the risks incident to limiting his charge of negligence to one particular, the defendant cannot complain, for it is thereby relieved of the burden of disproving any negligence save that set forth in the pleading. The attitude of the plaintiff on the trial is that the setting out of the fire is evidence, not of every species of negligence, but of the particular carelessness stated in the complaint. Whether such fact is prima facie evidence of the particular form of negligence specified in the complaint does not depend upon any rule of pleading, is not governed by the scope of the averments of the complaint, but is determined by one general rule of evidence, which applies in all cases alike, whatever the allegations of that pleading are; i. e. the rule that the jury may infer negligence in any particular in which negligence is possible from the bare fact that the defendant caused the fire. The plaintiff having established a prima facie case that the engine was negligently operated, it is unnecessary for us to follow counsel for defendant in his argument that the fire did not start upon defendant's right of way.
We now come to the merits. It is urged that plaintiff has failed to establish his right to recover the value of the hay and standing grass burned, even conceding the negligence of the defendant. Defendant attacks the plaintiff's title to this property. We are clear that it may do so. Had plaintiff as a naked trespasser, cut this hay on private property not owned by him, and not in his possession, his actual possession of such hay, while sufficient to support an action of replevin in the cepit or an action for trespass de bonis asportatis, would not entitle him to sue in an action on the case one who had destroyed the property while still in his possession. The injury in such a case is suffered by the real owner, and not by the one who has possession without right as against such real owner. A thief in possession may maintain conversion or replevin against one who, without any right to possession, wrests the property from such thief. But, when the property itself is destroyed by the wrongful act of another, the wrongdoer is allowed to interpose the defense that the plaintiff has no title in order to protect himself against double liability, the right to institute the action for damages in such a case being vested by the law in the real owner of the property, and not in the one who without shadow of right is in the possession thereof. These principles are...
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