McTavish v. Great Northern Railway Co.

• Decision Date: 11 May 1899
• Court: North Dakota Supreme Court

79 N.W. 443

8 N.D. 333

JOHN MCTAVISH v. GREAT NORTHERN RAILWAY CO

Supreme Court of North Dakota

May 11, 1899

Appeal from District Court, Pierce County; Morgan, J.

Action by John McTavish against the Great Northern Railway Company. Judgment for plaintiff. Defendant appeals.

Affirmed.

W. E Dodge and Charles S. Albert, for appellant.

The prima facie presumption of negligence from the setting out of the fire by defendant's engine raised by § 2984 Rev. Codes, is a disputable one and was rebutted by the facts admitted in the stipulation. Volkman v. Chicago, St. P M. & O. Ry. Co., 37 N.W. 731, 5 Dak. 69; Dailey v C. M. & St. P. Ry. Co., 43 Minn. 319; Menominee, etc. Co. v. Ry. Co., 65 N.W. 176; Spaulding v. Ry. Co., 33 Wis. 582; State v. Hodge, 50 N.H. 510; 2 Shearman & R. on Neg. § 676; Carson v. Ry. Co., 29 Minn. 12; Searles v. Ry. Co., 101 N.Y. 661; St. L., etc. Co. v. Knight, 41 S.W. 417. The evidence connecting cause and effect, in actions to recover for the negligent setting of a fire must be clear, positive and convincing. Plaintiff has the burden of showing that the fire negligently set by defendant caused his injury. Montague v. Ry. Co., 72 N.W. 41; Baxter v. Ry. Co., 75 N.W. 1114; Lake Erie, etc. Ry. Co. v. Maron, 47 N.E. 691; Stratton v. Ry. Co., 42 P. 602; Denver, etc. R. Co. v. Morton, 35 P. 345; Denver, etc. R. Co. v. DeGraff, 29 P. 664. Plaintiff to recover must establish that there was a fire on the right of way and that it escaped therefrom. It is not sufficient merely to prove that there was fire on the right of way. Taylor v. Ry. Co., 34 A. 457. Plaintiff to recover must establish the case made in his pleadings, where the allegation is that the fire was set by sparks from a locomotive of defendant's, evidence that it was set by a fire from another field, even though occasioned by sparks from the engine will not sustain the averment. Toledo, etc. Co. v. Morgan, 72 Ill. 155; Miller v. Ry. Co., 23 N.W. 756; Carter v. Ry. Co., 21 N.W. 607. When a fire originates on the defendant's premises and is communicated from thence to plaintiff's premises, the complaint must allege negligence in permitting it to escape to the land of the plaintiff. The tort consists not in the defendant's setting out fire on its own premises but in permitting it to escape thereform, and the proof cannot extend beyond the averments of the complaint. Pittsburg Ry. Co. v. Culver, 60 Ind. 969; Omaha R. Co. v. Wright, 66 N.W. 842; Pa. Co. v. Gallatine, 77 Ind. 322; Louisville R. Co. v. Sperm, 87 Ind. 322; Louisville R. Co. v. Ehlert, 87 Ind. 339; Ind. R. Co. v. Adamson, 90 Ind. 60; Ind. R. Co. v. McBroom, 91 Ind. 111; Haugen v. R. Co., 3 S.D. 294; Weber v. Ry. Co., 65 N.W. 93; Northern P. Ry. Co. v. Burke, 44 P. 904. The primary cause must be the proximate cause of the injury. If because of the fire on the right of way, other persons were prompted to set out back fires for the protection of their property defendant is not liable for injuries caused by the back fires. Marvin v. Ry. Co., 47 N.W. 1123; Cook v. Ry. Co., 14 N.W. 561; Megon v. Ry. Co., 56 N.W. 1009; Keslowski v. Thayer, 66 Minn. 150. Where, as in this case, the court gave an erroneous instruction in regard to a vital issue and erroneously submitted an issue which ought to have been withheld from the jury, the Ry. Co., 61 Minn. 441; VanDoran v. Wright, 65 Minn. 80; Hill error is vital. Leitch v. Ry. Co., 67 N.W. 21; Funk v. v. Trainor, 49 Wis. 537; Heddler v. Ry. Co., 42 N.W. 237. The instruction that defendant was bound to use the best known appliances to prevent the escape of fire was error. It imposed too high a degree of care upon defendant. Paris, etc. Ry. Co. v. Nesbett, 33 S.W. 280. The order of the District Court directing judgment to enter was not a judgment in fact or in legal effect and its entry by the clerk did not make it a judgment so as to give this Court jurisdiction on the former appeal. In re Weber, 4 N.D. 119, 59 N.W. 523; Locke v. Hubbard, 9 S.D. 364, 69 N.W. 588; Field v. Elev. Co., 5 N.D. 400, 67 N.W. 147; Greenly v. Hopkins, 7 S.D. 561, 64 N.W. 1128; Chamberlain v. Hedges, 10 S.D. 290, 73 N.W. 75; Coburn v. Commis'r's, 10 S.D. 552, 74 N.W. 1026; 1 Black on Judgments, § 3; Whitwell v. Emory, 3 Mich. 84, 54 Am. Dec. 220; Putnam v. Crombie, 34 Barb. 232; Demens v. Poyntz, 6 So. Rep. 261. The entry of judgment by the clerk is a prerequisite to the right of appeal from the judgment. Los Angeles Bank v. Raynor, 61 Cal. 145; 1 Black on Judgments, § 106. A judgment is rendered when ordered by the court and entered when actually entered in the judgment book. The entry of an order for judgment is not the entry of judgment. Durant v. Comegys, 26 P. 755; Lincoln v. Cross, 11 Wis. 94; McNevin v. McNevin, 11 Pac. Coast L. Jr. 92; Martin v. Barnhardt, 39 Ill. 9; Haynes New Trials 183, n. 6; Park v. Lide, 7 So. Rep. 805; Thomas v. Anderson, 55 Cal. 43; Schroeder v. Schmidt, 12 P. 302; Tyrell v. Baldwin, 13 P. 475; Morgan v. Flexner, 16 So. Rep. 716; Brown v. Hathaway, 10 Minn. 303; Williams v. McGrade, 13 Minn. 46; Hodgins v. Heaney, 15 Minn. 185; Hoehne v. Trugillo, 1 Colo. 161; Hunter v. Cleveland, 31 Minn. 505; Myer v. Tentopolis, 131 Ill. 552; Premt v. People, 5 Neb. 377. The decision should be signed by the judge and the judgment by the clerk. Delaney v. Blizzard, 7 Hun. 66; Rousseau v. Bleau, 8 N.Y.S. 825.

N. A. Stewart (Bosard & Bosard, of counsel), for respondent.

The judgment was irregular in form, but it was sufficient in substance as it contained the final judicial determination of the action. It was duly entered, and finally determined the controversy. Cameron v. G. N. Ry. Co., 8 N.D. 124, 77 N.W. 1017; Freeman on Judgements, §§ 47-50. Where judgment has been rendered but not entered, it may be entered nunc pro tunc, and such entry will support intermediate proceedings conformable with judgment. Graham v. Lynn, 39 Am. Dec. 493; Todd v. Todd, 63 N.W. 777; Jones v. Lewis, 47 Am. Dec. 338; Davis v. Shaver, 91 Am. Dec. 92; Tapley v. Goodsell, 122 Mass. 176. The entry of judgment nunc pro tunc is always proper when a judgment has been ordered by the court but the clerk has failed to copy it into the record. Howell v. Morlan, 78 Ill. 162; Franklin v. Merida, 50 Cal. 289; Hansbrough v. Fudge, 80 Mo. 307; Belkin v. Rhodes, 76 Mo. 643; Aydelette v. Brittam, 29 Kan. 98. Where fire has been negligently communicated to property and by subsequent agencies it is carried to other properties the party first setting out the fire will be held liable. Poeppers v. Ry. Co., 67 Mo. 715; Coates v. Ry Co., 61 Mo. 38; Krippner v. Biebl, 28 Minn. 139; Atkinson v. Transportation Co., 60 Wis. 141; Milwaukee, etc. Ry. Co. v. Kellogg, 94 U.S. 169; Henry v. Ry. Co., 50 Cal. 183. The proximate cause of damage by fire carried from one building to another through intermediate means is a question for the jury. Adams v. Young, 44 Ohio St. 80.

OPINION

BARTHOLOMEW, C. J.

Some questions of practice meet us on the threshold of this case, raised by respondent's motion to dismiss the appeal. The case has already been once in this Court. See 8 N.D. 94, 76 N.W. 985. At that time a motion was made by respondent to strike the statement and abstract from the files for certain alleged defects, which motion was sustained. Thereupon both parties moved to dismiss the appeal; respondent with prejudice, and appellant without prejudice. An order of this Court was entered dismissing the appeal with prejudice, unless within a specified time appellant should pay respondent a sum named to cover the expenses of the appeal. Appellant declined to pay such sum, and the order of dismissal was made absolute. It now transpires that counsel for the appellant declined to pay the sum specified in the former order because, upon an inspection of the records in the trial court, he reached the conclusion that no judgment had ever been entered in the case, and consequently the former appeal had been prematurely taken, and the case was not properly in this Court. After the remittitur was sent down, counsel procured the entry of what he regarded as a regular judgment upon the order for judgment previously made by the District Court, and from such judgment he prosecutes this appeal. This judgment concededly includes respondent's taxable costs on the former appeal, in addition to the amount of the judgment originally ordered by the District Court. After the remittitur was sent down, counsel for the respondent procured an order directing the clerk of the District Court to enter the judgment in the case, nunc pro tunc, as of the date of the original order for judgment, which was done, and a regular judgment of affirmance was also entered on the remittitur.

Counsel for the respondent now move to dismiss this appeal, and as the first ground for the motion insist that there was a valid judgment at the time of the former appeal, and that the dismissal of that appeal affirmed the judgment, and hence this matter is res adjudicata. Counsel's conclusion is conceded if the major premise be correct. The records show that on the 27th day of April, 1898, an order for judgment was made and signed by the judge of the District Court which, after the usual formal parts, declares: "And the court, overruling the defendant's motion for a new trial, made on the 17th day of March, 1898, orders that the plaintiff have and recover judgment against the defendant for the sum of two thousand six hundred and eighty-eight and 85-100 (2,688.85) dollars damages, and interest thereon from and after the 18th day of June, 1897, and ten dollars costs; and the clerk of the District Court is hereby ordered to render judgment accordingly." This order was, on the 11th day of May, 1898, entered by the clerk of the District Court in his judgment book, and thereafter, and on...