McCool v. Davis

• Decision Date: 08 February 1924
• Docket Number: No. 23650.,23650.
• Citation: 158 Minn. 146,197 N.W. 93
• Parties: McCOOL et ux. v. DAVIS, Agent, et al.
• Court: Minnesota Supreme Court

158 Minn. 146

197 N.W. 93

McCOOL et ux.

v.DAVIS, Agent, et al.

No. 23650.

Supreme Court of Minnesota.

Feb. 8, 1924.

Appeal from District Court, St. Louis County; H. C. Dancer, Judge.

Action by Harry E. McCool and wife against James C. Davis, as Agent, etc., and others. From an order denying an alternative motion for judgment notwithstanding the verdict, or for a new trial, defendants appeal. Reversed, and new trial granted.

Holt and Dibell, JJ., dissenting.

Syllabus by the Court

Evidence examined, and held not to sustain findings because of the failure to identify the railroad fire, alone or in union with other fires, ever reaching plaintiffs' premises.

Baxter v. Great Northern Ry. Co., 73 Minn. 189, 75 N. W. 1114, followed.

Plaintiffs' case in the realm of conjecture and speculation. Baldwin, Baldwin, Holmes & Mayall, of Duluth, for appellants.

Lathers, Hoag & Lacy, of Duluth, Jas. Manahan, of St. Paul, Arnold & Arnold, and Theo. Hollister, all of Duluth, for respondents.

WILSON, C. J.

This is a fire case against the defendant railway companies and James C. Davis, as Agent of the President under the Transportation Act of 1920 (U. S. Comp. St. Ann. Supp. 1923, § 10071 1/4 et seq.). This action is based on negligence. Action dismissed as to all defendants except the Great Northern Railway Company and James C. Davis, Agent of the President under Transportation Act of 1920. Plaintiffs were given a verdict, and from an order denying their alternative motion for judgment notwithstanding the verdict, or for a new trial, defendants have appealed.

Plaintiffs' property is located in the city of Duluth, 28 miles east and about one mile south of milepost 62, which is at the place where plaintiffs claim the fire started.

For the purposes of this case we assume that through defendants' negligence a fire was started in some wood products at milepost 62 on Thursday, October 10, 1918, and, though suppressed, it was not subdued, and burst forth with renewed vigor about noon on October 12. There was sufficient evidence on this branch of the case to justify the verdict.

The files disclose maps which show the townships, rivers, town lines, sections, lakes, railroads, highways, villages, cities, and other pertinent matters, and one of these maps will materially aid in the reading of this opinion. In township 51 we have towns in ranges 19, 18, 17, 16, 15, 14, and 13, and, beginning with range 18, they are named Culver, Industrial, Grand Lake, Canosia, Rice Lake, and Lakewood. Then immediately below this we have township 50, with ranges 19, 18, 17, 16, 15, and 14, and, beginning with range 16, they are named Solway, Herman, and the city of Duluth.

The St. Louis river flows from west to east through sections 30, 29, 28, 27, and 26, in the town of 51-19, and through sections 30, 29, 28, 27, 35, and 36 of the town of Culver, and then through sections 2, 1, and 12 of the town of 50-17, and then two miles south to the city of Cloquet. The Cloquet river comes from the northeast and enters the St. Louis river on section 36 of the town of Culver.

The village of Brookston was located principally on sections 34 and 35 of the town of Culver. The country between milepost 62 and plaintiffs' property was timbered country, with settlers here and there developing their land.

The fire at milepost 62 started to spread at 1:40 p. m. The general direction of the wind in the afternoon on this date, which was so terrible to the settlers in that locality, was from a little north of west. This fire reached Brookston, four miles away, at 4 p. m.

A fire was on the north side of the river at about milepost 60, and, while the evidence does not directly connect this with the railroad fire, the jury was possibly justified in drawing an inference that it was of railroad origin. The railroad fire caught Brookston and passed over a territory immediately to the south thereof, and crossed the St. Louis river at 3:30 p. m.

The fire north of milepost 60 apparently went easterly and crossed the Cloquet river in section 30 of the town of Industrial at about 2 p. m., and then passed on to where it destroyed one Thorwall's house in the eastern part of section 29 at about 3 p. m., and then the evidence seems to lose the identity of this fire, although it may have been the source of fire at Grand Lake station on the Duluth, Missabe & Northern Railway Company at the southeast corner of section 27 at 5 p. m. At this point this part of the fire is completely lost, and, from all that the record shows, there terminated.

The evidence shows that a fire at 4 p. m. struck Bloom's place on the east half of the northeast quarter of section 2-50-17, which is five miles east of where the railroad fire crossed the St. Louis river at 3:30 p. m. A fire was in the northwest quarter of section 6 of the town of Solway (6-50-16) at 4:35 p. m.

A fire was in the tree tops at 4 or 4:10 p. m. in section 1 in the town of Solway (1-50-16). This is 12 miles east of the place where the railroad fire crossed the river at 3:30 p. m. and 6 miles east of Bloom's place, which the fire struck at 4 p. m.

In the forenoon of the eventful day from sections 1 and 12 of the town of Grand Lake (51-16) fire was observed in the north and a trifle to the east. This fire had been in existence for several days and had come from due north and had ‘traveled possibly several miles east of where it originally had been seen.’ It was in the vicinity of Fish Lake. At 7 p. m. flames were jumping in the tops of the trees from hilltop to hilltop like torches, going east and possibly south in the vicinity of Rice Lake.

A fire was observed on section 15 in the town of Herman (15-50-15) at about 3:30 p. m. which is about the same time the railroad fire was crossing the St. Louis river 16 or 17 miles to the west.

Jackson school was at the northeast corner of section 10 of Herman town (10-50-15). Between 3:30 and 4 p. m. a fire existed half a mile north of the Jackson school and was there all day, and, at a point 2 miles north of Jackson school, fire had crossed the roads at 4:30 p. m.

Between 4 and 5 p. m. a fire crossed large portions of the work farm on sections 1 and 2, town of Herman (1 and 2-50-15) covering all of section 1. The main buildings on this farm were burned by another fire between 7 and 8 p. m., and this was at a time when the wind was from the north.

Under a north wind the Kimball and Clark homes on section 12 just south of section 1, part of work farm, were burned. This was about the same time that plaintiffs' home was destroyed. It was apparently located on the northwest 40 acres of section 2-50-14. But the Norman dairy, located on the southerly part of sections 4 and 5 and on the northerly part of sections 8 and 9 in 50-14, was burned at 6 p. m. Almost straight west from the dairy, the fire came from the west to the Leslie home on the west side of section 10, town of Herman (10-50-15) at 6 p. m.

Was the fire at Leslie's at 6 p. m. the fire that crossed over the work farm between 4 and 5 p. m.? Fire was seen from the dairy farm at 5 p. m. approaching from the west 100 feet high, and yet the fire from the west apparently did not reach Leslie's, over 4 miles to the west, until 7 p. m.

This brings us to the immediate vicinity of plaintiffs' property. To the north and northwest are platted lots. About a quarter of a mile due north of plaintiffs' home was a lettuce farm on which peat land was burning all the afternoon of the day of this misfortune, and the fire department of Duluth was called and arrived about 3:35 p. m. They connected a hose with a city water hydrant and fought the fire with water. After a half hour of unsuccessful efforts, men were called from other fires, up on the Arnold road half a mile north, to help. This fire, in spite of the human opposition, continued to spread and advance, and at 7 p. m. the men withdrew and left it almost north of plaintiffs' home, and from this direction and this locality came the firebrands that brought the destruction.

Calvary road traversing from west to east in the center of sections 32 and 33, and then southeasterly through section 34 in Rice Lake township (34-51-14), had between 6:30 and 7 p. m. fire on both sides of it along part of section 34. Kingston road, which is parallel with the west part of Calvary Road, and one-eighth mile to the north of sections 32 and 33, was blocked by fire at 6:45 p. m. To the north of the Kingston road is Luzerne road, and, from the north of this road, fires were sweeping in from the north. These fires were approaching from the northwest between 5 and 6 p. m. At about 1 o'clock that afternoon a fire was burning on the east part of section 20 of the town of Rice Lake (20-51-14). This was about half a mile east of Rice Lake, and the territory to the north was covered by fires on this day.

At 12:30, when the railroad fire had not yet made a fair start and had not left the landing at milepost 62, such clouds of smoke were blowing over the city of Duluth, 29 miles to the east, that the sun was obscured and the condition alarming. This fact alone is very persuasive as to the general fire condition in a large territory west and northwest of the city of Duluth in which locality a number of stray fires were located. At 4:30 in the afternoon the witness Kayser saw fire on both sides of the Howard Gnesen road about two miles from plaintiffs' home, which had ‘jumped the road.’

There were a number of fires in this burned area, on the afternoon in question, which could not possibly have originated from the fire at milepost 62. This is particularly true of fires in the towns of Grand Lake, Canosia, Rice Lake, Solway, and Herman. In fact, aside from the fire at milepost 62, these various fires were not of railroad origin, and their origin is unknown.

Fires have been known to smolder for weeks and then flare up and proceed to consume property. This fire occurred on a day when forest fires were extant in northern Minnesota and...