McGilvra v. Minneapolis, St. P. & S. S. M. Ry. Co.

• Decision Date: 24 October 1916
• Citation: McGilvra v. Minneapolis, St. P. & S. S. M. Ry. Co., 35 N.D. 275, 159 N.W. 854 (N.D. 1916)
• Court: North Dakota Supreme Court
• Parties: McGILVRA v. MINNEAPOLIS, ST. P. & S. S. M. RY. CO.

35 N.D. 275

159 N.W. 854

McGILVRA

v.MINNEAPOLIS, ST. P. & S. S. M. RY. CO.

Supreme Court of North Dakota.

Oct. 24, 1916.

Syllabus by the Court.

Evidence examined, and held to furnish prima facie proof that a prairie fire had been started by a railway engine.

Sections 5569, 5571, and 5572 of the Compiled Laws of 1913 were merely intended to be applicable to proof before the registers of deeds where unacknowledged instruments are sought to be recorded, and in other instances, and when deeds and leases are sought to be proved, the general rules of evidence apply.

Proof that a witness knows the signature of the alleged maker of a lease and knows that it is his signature that is on the instrument constitutes prima facie proof of the execution of such instrument, and will entitle it to be introduced in evidence.

Where the record title to land is in “B., trustee,” one who holds possession of such land under a lease from such trustee is prima facie entitled to recover damages for the negligent burning of the hay thereon, and as against a collateral attack on such lease, even though there is no proof of the authority of such trustee to execute the same.

Where certain land is injured by a prairie fire and the nature and extent of the scorching or burning of the soil is capable of direct proof, evidence is not admissible as to the injuries which have been occasioned by other fires to other lands at other times; the test being the injury to and the effect on the particular land in question.

In order that an article may be said to have a market price, it must be shown that other property of the same kind was the subject of purchase or sale in so many instances that the value became, in a measure, fixed by a consensus of buyers and sellers in the ordinary course of trade (citing Words and Phrases, First and Second Series, Market Price).

Where hay is destroyed by a prairie fire, the owner is entitled to recover its reasonable value at the place where and at the time when destroyed, and for the uses and purposes to which it could be reasonably applied. Where there is a fixed local market value, that value usually prevails. Where, however, there is no local market, the value at the nearest market usually prevails, but to this must be added the cost of transportation if the hay is kept for use merely, and from this the cost of transportation will be deducted if it is kept for sale. Where no market price prevails or the market price is clearly inadequate, a liberal rule of proof obtains, and evidence may be introduced of the prices paid at occasional sales and of the uses for which the hay was kept and adapted, as well as of the cost of production.

A farmer is competent to testify as to the value of hay which is grown upon his own land, and this even in the absence of proof of a market for the same.

An instruction to the effect that, “When witnesses are otherwise equally credible greater weight and credit should be given to those whose means of information are superior, and also to those who swear affirmatively to a fact rather than to those who swear negatively, or to a want of knowledge or want of recollection,” is criticized, but held not to constitute reversible error.

An instruction, to the effect that, “I instruct you, further, that the testimony of one credible witness is entitled to more weight than the testimony of many others, if as to those other witnesses the jury have reason to believe, and believe, from the evidence and all the facts before them that such witnesses are mistaken or have knowingly testified untruthfully, and are not corroborated by other credible witnesses or by circumstances proved in the case,” merely states a self-evident fact, and is not erroneous in not being confined to material matters, as it can only be construed to relate to particular matters concerning which the witness has testified, and concerning which the jury believes that other witnesses have testified untruthfully, and does not pretend to be an instruction on the credibility of witnesses generally.

Additional Syllabus by Editorial Staff.

In order to say of a thing that it has a “market value,” it is necessary that there shall be a market for such a commodity, i. e., demand therefor, and ability from such demand to sell the same when the sale thereof is desired.

Appeal from District Court, McIntosh County; Frank Allen, Judge.

Action by M. T. McGilvra against the Minneapolis, St. Paul & Sault Ste. Marie Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed on condition.

Lee Combs and L. S. B. Ritchie, both of Valley City, for appellant. G. M. Gannon, of Ashley, for respondent.

BRUCE, J.

This is an action to recover damages for the destruction of hay and injury to real estate by reason of a fire claimed to have been set by the defendant's engine at a point about three miles southeast of the town of Wishek in McIntosh county. A judgment for $750.08 was entered for the plaintiff and against the defendant, and the defendant appeals. This opinion is written after a rehearing.

[1] Appellant first contends there was no evidence to go to the jury on the question as to whether the defendant caused the fire. All of the evidence that there is upon the subject is that a passenger upon a train of the defendant company saw a fire start up at some distance from the railroad track as the train passed. He said that he did not know whether the fire started from the right of way or not. He, however, said that he saw nobody around the place, that the fire was on the east side of the track, and that he thought the wind was from the west. In addition to this was the testimony of the plaintiff that he had followed the trail of the fire to a point near defendant's right of way, but that he could not tell just where it started, as it appeared to have burned in all directions. There is other testimony that the wind was from the northwest, and that the track was to the west of the place of the fire. Meager though this evidence is, we think it was sufficient. Many a man, indeed, has been hung on circumstantial evidence which was much weaker than that which is before us. The fire started near the railroad track and on the open prairie. No human beings seem to have been in the neighborhood except the occupants of the train. There is no proof that there was any fire-communicating agency in the neighborhood but the engine. The grass was dry, and the wind was blowing towards it from the track. The fire seems to have started up almost immediately after the engine had passed the spot. There is no evidence that it was seen before the engine had passed. A prima facie case as to the origin of the fire was certainly made by the plaintiff and this case was in no way rebutted or disproved. Babcock v. Canadian Northern Railway Co., 117 Minn. 434, 136 N. W. 275, Ann. Cas. 1913D, 924.

We are not unmindful of the case of Smith v. Northern Pacific Railway Co., 3 N. D. 17, 53 N. W. 173, on which counsel for the defendant lays much stress in his brief and argument. That case, however, is not in point. It was handed down prior to the enactment of section 4654, Compiled Laws of 1913, which makes railway companies liable for the fires which are started by their engines irrespective of the question of negligence. It was therefore necessary in that case to prove negligence in the operation of the engine or in its equipment. All that the court held was that the mere fact that a fire started 118 feet from the engine was not itself sufficient proof of such negligence, or of the lack of a proper equipment. It was admitted that the fire was started by the engine, and the question of its origin was not involved or discussed. Here the questionbefore us is a question of origin and not of negligence.

[2] The next point raised is that the plaintiff failed to offer any competent proof of his ownership of the east half of section 1, township 131, range 71, and thus to lay a foundation for the recovery of damages for the destruction of the hay upon said land. It is claimed that his evidence consists merely of a certain agreement which purported to have been signed by John T. Bressler, trustee, and by the plaintiff, and which declared that the said McGilvra had rented the land for the year 1914, and had agreed to pay $40-

“for the use of the above land for hay and pasture purposes for the season of 1914, and thereafter for five years at the same rate, payable in advance, with the privilege to fence the land and remove the same in case the land is sold. This lease made subject to the sale of the land at any time, and may be canceled on date of the sale of the land and the rental pro rated to that date.”

It is argued that all the proof that there is of the making of this instrument is the testimony of the witness Gannon, who testified that he was acquainted with the signature of John T. Bressler, and that the signature on the contract was his. It is argued that section 5569 of the Compiled Laws of 1913 provides that:

“Proof of the execution of an instrument, when not acknowledged, may be made either:

1. By the party executing it, or either of them; or,

2. By a subscribing witness; or,

3. By other witnesses mentioned in sections 5019 and 5020”

-and that sections 5019 and 5020, Revised Codes of 1905 (being sections 5571 and 5572, Compiled Laws 1913), merely provide for proof of the execution by proof of the handwriting of the party and of a subscribing witness, and then only:

“1. When the parties and all the subscribing witnesses are dead; or,

2. When the parties and all the subscribing witnesses are nonresidents of the state; or,

3. When the place of their residence is unknown to the party desiring the proof, and cannot be ascertained by the exercise of due diligence; or,

4. When the subscribing witness conceals himself, or cannot be found by the officer by the exercise of due diligence in attempting to serve a subpœna or attachment; or,

5. In case of the...