McCullen v. Chicago & N.W. Ry. Co.

• Decision Date: 26 March 1900
• Docket Number: 1,275.
• Citation: 101 F. 66
• Parties: McCULLEN v. CHICAGO & N.W. RY. CO.
• Court: U.S. Court of Appeals — Eighth Circuit

101 F. 66

McCULLEN v. CHICAGO & N.W. RY. CO.

No. 1,275.

United States Court of Appeals, Eighth Circuit.

March 26, 1900

George C. Cooper, for plaintiff in error.

C. I Crawford (A. W. Burtt, on the brief), for defendant in error.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

THAYER Circuit Judge.

This action was brought by Maggie McCullen, the plaintiff in error, against the Chicago & Northwestern Railway Company the defendant in error, to recover the value of a steam flouring mill located in the town of St. Lawrence, county of Hand, state of South Dakota, which was destroyed, as she claimed, on December 2, 1895, by being set on fire by sparks that were negligently suffered to escape from one of the defendant company's locomotives, which was at the time in charge of its employes and was hauling one of its freight trains. The action was brought originally in a state court but was removed to the federal court. After the case had been under consideration for about 31 hours by the jury which was impaneled to try the same, and the jurors had failed to agree upon a verdict, they were recalled and directed to return a verdict in favor of the defendant, upon which verdict, so returned by direction of the court, a judgment was subsequently entered. The plaintiff below excepted to such action on the part of the trial court, and brought the case here for review.

We are advised by the record, and also by the statements of counsel that there had been three previous trials of the case upon substantially the same evidence which is contained in the present record, and that in each instance the jury had failed to agree. It has been repeatedly held since the decision in Railway Co. v. Ives, 144 U.S. 408, 12 Sup.Ct. 679, 36 L.Ed. 485, that when the facts proven are such that reasonable men may fairly differ upon the question as to whether there was negligence or not, the determination of that issue is for the jury; and inasmuch as 48 men, who have at various times listened to the evidence in this case, have differed in opinion as to whether the defendant was or was not negligent, we would perhaps be justified in regarding that test as conclusive, and in remitting the case to the lower court to be retried. In view of the numerous trials that have taken place, we have thought it best, however, to consider the testimony attentively, and decide as to its sufficiency to sustain a verdict for the plaintiff, as it would have been our duty to do if the trial court, at the conclusion of the first trial, had of its own motion directed a verdict for the defendant.

The point at issue necessitates a statement somewhat in detail of the facts which were developed at the trial. The defendant's railroad track passes through the town of St. Lawrence from east to west. The plaintiff's mill that was destroyed was situated on the south side thereof, and 302 feet distant therefrom in a direct line. Between the mill and track were an elevator, close to the track, which was 57 feet high, and on the south side thereof a lower wooden warehouse. The plaintiff's mill was three stories in height. A considerable space of vacant ground intervened between the buildings last described, and the territory south of the railroad track was generally open and unoccupied. On the roof of the mill, at its northeast corner, was a small ventilator which extended above the top of the roof a few feet. The four sides thereof consisted of thin wooden slats similar to those which are usually employed in constructing window blinds or shades. Directly underneath the ventilator on the third floor was a cyclone dust collector which, when in operation, blew some dust through the slats of the ventilator into the open air. The mill was closed down on Friday previous to the fire, which occurred about 10:30 a.m., on Monday, December 2, 1895, and there were no fires in or about the premises save in a small cannon stove which was located in a one-story office building at the northwest corner of the mill. This office building was not a part of the mill proper, but was connected therewith. In this stove there was a small fire on the morning of December 2, 1895, but the pipe leading therefrom extended above the roof of the mill, and such smoke as escaped from this pipe on that morning drifted in a direction which did not bring it within 20 feet of the ventilator heretofore mentioned. The wind was blowing from the north or from the northwest or from an intermediate point at a rate which was variously estimated by the witnesses at from 10 to 15 miles per hour. About 10:30 a.m. on the morning of the fire a freight train of the defendant company, containing about 30 cars and drawn by 2 engines, passed through the town of St. Lawrence from east to west without stopping. As this train moved through the town opposite to the mill, and for some distance west thereof, it was climbing an upgrade, and the engines were seen by several witnesses to emit considerable smoke, which was described by some of them as being dense and black. Shortly after the passage of the train, and within a period variously estimated at from 10 to 20 minutes, the mill was discovered to be on fire. Two witnesses located the fire when it was first seen as being on the slats on the outside of the ventilator heretofore described, and all agree that the fire was first observed from the outside on or around this ventilator. The plaintiff's husband testified, in substance, that on the first alarm of fire he stepped out of the small office building, and from that point saw a small blaze on the outside of the ventilator; that he entered the mill, and went immediately to the third story or floor, and found no fire on that floor on the inside of the mill underneath the ventilator, nor anywhere else, but that the fire at that time was wholly confined to the slats of the ventilator.

With respect to the issue whether the fire in question was occasioned by a spark from one of its locomotives, the defendant offered much expert testimony to the effect that a spark could not have been emitted by either of its locomotives, and carried a distance of 302 feet from its track, which would have retained sufficient vitality to have set fire to the slats of the ventilator under the conditions which existed at the time the fire took place. On the other hand, a railroad engineer who was called by the plaintiff...