Mc Clellan v. St. Paul, M. & M. Ry. Co.

• Decision Date: 05 July 1894
• Docket Number: No. 8870.,8870.
• Citation: 58 Minn. 104
• Parties: J. W. McCLELLAN <I>vs.</I> ST. PAUL, MINNEAPOLIS & MANITOBA RY. CO.
• Court: Minnesota Supreme Court

58 Minn. 104

J. W. McCLELLAN vs. ST. PAUL, MINNEAPOLIS & MANITOBA RY. CO.

No. 8870.

Supreme Court of Minnesota.

Submitted on briefs May 7, 1894.

Affirmed July 5, 1894.

Appeal by defendant, St. Paul, Minneapolis and Manitoba Railway Company, from a judgment of the District Court of Mille Lacs County, L. L. Baxter, J., entered October 4, 1893, on a verdict for $764.10.

M. D. Grover and George H. Reynolds, for appellant.

Bruckhart & Brower, for respondent.

COLLINS, J.

The evidence in this case conclusively established that hay and ties claimed by plaintiff as his property were destroyed by fire about October 6, 1889. The fire had been raging for several days. The ties had been piled up for delivery to defendant company on its right of way, and were there destroyed, while the hay was in stacks upon a meadow not far distant. It was shown that some days before, about October 1st, a small fire was seen to break out on defendant's right of way, north of and close to the track, immediately after a freight train which had parted in two was coupled up at that point, and had proceeded on its way. The witness who first saw the fire was walking along the track behind the train, and, when he passed (about fifteen minutes after the train started up), the fire was burning briskly, and running in a northerly direction. This witness saw the fire the next day, and it had then burned over quite an area. Another witness saw the fire about half an hour after it broke out, and, for several days afterwards, until it had reached the plaintiff's ties, was engaged with him in an effort to put it out. That this fire was not kept under observation during all of each of the nights which intervened between the day it was first seen and that on which the hay and ties were destroyed would not of itself prevent a recovery, if the testimony as to the manner and direction in which it seems to have burned was sufficient to satisfy the jury that, although left at times in the hope that it had been extinguished, it again broke out and resumed its way. And it evidently was sufficient. Taking the evidence as a whole, it fairly established that the fire which was seen soon after the train passed, in close proximity to the track, and on the north side of it, spread in a northerly direction, and that the property in question was burned by it, unless the testimony of the two witnesses referred to and of other persons was completely rebutted and overthrown by that of the witness Dean as to another fire, which in no manner was shown to have been caused by defendant. He stated that, about October 1st, he went with some men in defendant's employ to fight a fire near which plaintiff's ties were burned, and found it burning on the south side of the track. The witness stayed there until the fire crossed the track to the north side, — that on which plaintiff's hay was stacked and ties piled. As before stated, defendant was not shown to be responsible for this fire; so that, if the plaintiff's loss was solely the result of this...