Miller v. Northern Pac. Ry. Co.

• Citation: 135 P. 845,24 Idaho 567
• Parties: O. B. MILLER, Respondent, v. NORTHERN PACIFIC RAILWAY CO., Appellant
• Decision Date: 16 September 1913
• Court: United States State Supreme Court of Idaho

135 P. 845

24 Idaho 567

O. B. MILLER, Respondent, v. NORTHERN PACIFIC RAILWAY CO., Appellant

Supreme Court of Idaho

September 16, 1913

NEGLIGENCE AND DAMAGES-SUFFICIENCY OF EVIDENCE-INSTRUCTIONS-DAMAGES CAUSED BY UNION OF AGENCIES-RESPONSIBLE AND IRRESPONSIBLE AGENCIES.

1. Evidence in this case examined, and held that it was sufficient to go to the jury upon the question of the efficient or proximate cause of the injury and the negligence causing the injury.

2. The following instruction held to be a correct statement of the law applicable to the facts of this case:

"A person who negligently sets a fire is responsible for the damage done by it although such fire is joined by a fire set by another person and the two concurrently do the damage, if it appears that the first fire would have done the damage without the assistance of the second fire.

"And so, in this case, if you find that the defendant negligently set a fire about one-half mile north of Cocolalla and that such fire spread from there to the plaintiff's premises and damaged his property, then you should find a verdict for the plaintiff even though you find that another fire mingled with said fire so set by the defendant, unless you should find that the fire so set by the defendant would not have done the damage to the plaintiff's property without the assistance of the other fire."

3. Held, that appellant's requested instruction No. 30 did not correctly state the law and was properly rejected.

4. Held, that the following instruction states a correct principle of law which might properly be given where the facts of the case involve such question:

"The court instructs you that if you find from the evidence that the damage to plaintiff's property was caused by two or more fires uniting, and that only one of these fires was traceable to the fire alleged to have started on or near the Raymond property, the other fires or any one of them not being traceable to any responsible origin, but being of such efficient or superior force that it would have produced the damage to plaintiff's property regardless of the fire which started on or near the Raymond property, then I instruct you that the plaintiff cannot recover and your verdict must be for the defendant."

5. Where two independent causes,-one of responsible, the other of irresponsible origin,-unite or concur in producing an injury so as to contribute to the plaintiff's damage, in so much that it can be said with reasonable certainty that the act of the defendant caused the injury and that the other and concurring cause set in motion by an irresponsible or unknown agency would not alone have sufficed to produce the injury, the defendant will be held liable. But if the other cause or superior force would have, at the same time and place, produced the same damage, whether defendant had been negligent or not, his negligence is not deemed the cause of the injury.

6. No one is liable for damages sustained by reason of the act of God or the forces of nature, but whoever by his wrongful act augments; diverts or accelerates those forces in such manner as to injure another is liable in damages therefor.

APPEAL from the District Court of the Eighth Judicial District for Bonner County. Hon. Robert N. Dunn, Judge.

Action for damages. Judgment for plaintiff. Defendant appeals. Affirmed.

Judgment affirmed. Costs awarded to respondent. Petition for rehearing denied.

George M. Ferris and Edward J. Cannon, for Appellant.

"To establish a theory by circumstantial evidence the known facts relied upon, as a basis for the theory, must be of such a nature and so related to each other that the only reasonable conclusion that may be drawn therefrom is the theory sought to be established." (Chicago Ry. v. Rhoades, 64 Kan. 553, 68 P. 58; Asback v. Chicago etc. Ry., 74 Iowa 248, 37 N.W. 182; Carruthers v. Chicago etc Ry., 55 Kan. 600, 40 P. 915; 17 Cyc. 817; 3 Ency. of Ev 67; Ruppert v. Brooklyn etc. Ry., 154 N.Y. 90, 47 N.E. 971; Cawley v. Baltimore Ry., 44 Pa. Supr. Ct. 340.)

The mere fact that a fire started on the Case place of and in itself proves nothing, and this is all that respondent has proven in this case. (Thorgrimson v. Northern P Ry., 64 Wash. 500, 117 P. 406.)

There must be some limit beyond which the main fact cannot be found from inference, else parties circumstanced like the defendant was may be held liable for all fires, occurring in the vicinity of their tracks, that can, by any possibility, be attributed to their conduct, unless able to prove that the fires are not so caused. (Finkelston v. Chicago Ry., 94 Wis. 270, 68 N.W. 1005; Denver Ry. v. De Graff, 2 Colo. App. 42, 29 P. 664; Baxter v. Great Northern Ry., 73 Minn. 189, 75 N.W. 1114; Babcock v. Fitchburg Ry., 140 N.Y. 308, 35 N.E. 596; Brennan etc. Co. v. Great Northern Ry., 77 Minn. 360, 79 N.W. 1032; Union P. Ry. v. Fickenscher, 74 Neb. 497, 110 N.W. 561; O'Brien v. Chicago etc. Ry., 102 Wis. 628, 78 N.W. 1084; Clark v. Grand Trunk etc. Ry., 149 Mich. 400, 112 N.W. 1121, 12 Ann. Cas. 559; Inman v. Railway, 90 Ga. 663, 35 Am. St. 232, 16 S.E. 958; Crissey etc. Co. v. Denver etc. Ry., 17 Colo. App. 275, 68 P. 676; Stratton v. Union P. Ry. Co., 7 Colo. App. 126, 42 P. 602; Megow v. Chicago etc. Ry., 86 Wis. 466, 56 N.W. 1099; Denver Ry. v. Morton, 3 Colo. App. 155, 32 P. 345; Minneapolis S. Co. v. Great Northern Ry., 83 Minn. 370, 86 N.W. 458; Marvin v. Chicago etc. Ry., 79 Wis. 140, 47 N.W. 1123, 11 L. R. A. 506.)

Where an injury accrues to a person by the concurrence of two causes, one traceable to another person under such circumstances as to render him liable as a wrongdoer and the other not traceable to any responsible origin, but is of such efficient or superior force that it would produce the injury regardless of the responsible cause, there is no legal liability. No damage in such circumstances can be traced, with reasonable certainty, to the wrongdoing as a producing cause. (Cook v. Railway, 98 Wis. 624, 67 Am. St. 830, 74 N.W. 561, 40 L. R. A. 462, and cases cited.)

B. S. Bennett, G. H. Martin and Davis & Asher, for Respondent.

Circumstantial evidence in civil cases, in order to be sufficient to sustain a verdict, need not rise to the degree of certainty which will exclude every other reasonable conclusion than that arrived at by the jury, and in the solution of questions of fact dependent upon circumstantial evidence, the jury must be left to decide which of two equally plausible conclusions deducible from such circumstances shall be adopted. (Kansas City etc. Ry. Co. v. Perry, 65 Kan. 792, 70 P. 876; Railway Co. v. Wood, 66 Kan. 613, 72 P. 215; St. Louis etc. Ry. Co. v. Dawson, 77 Ark. 434, 92 S.W. 27; Monte M. Ry. Co. v. Phillips, 80 Ark. 292, 96 S.W. 1060; Adams v. Bunker Hill etc. Co., 12 Idaho 637, 89 P. 624, 11 L. R. A., N. S., 844; Louisville etc. Ry. Co. v. Balch, 122 Ind. 583, 23 N.E. 1142; Hashman v. Wyandotte, 83 Kan. 328, 111 P. 468.)

Unless the facts are undisputed and only one inference can reasonably be drawn therefrom, then the case is one for the jury. (Fodey v. Northern P. Ry. Co., 21 Idaho 713, 123 P. 835, and cases therein cited.) And the jury may draw all legitimate inferences which all the testimony will justify. (3 Ency. Ev. 66; Adams v. Cleveland etc. Ry. Co., 243 Ill. 191, 90 N.E. 382; Modern Woodmen of America v. Craiger (Ind. App.), 90 N.E. 84; Bower v. Bower, 78 N.J.L. 387, 74 A. 522; Snowden v. Bell, 159 N.C. 497, 75 S.E. 721.)

Where a fire is negligently set and passes across intervening ground or jumps from one portion of the ground to another, and so continues until it reaches the plaintiff's premises and burns his property, he is entitled to recover unless there is an intervening independent cause for the destruction of the plaintiff's property. (Kansas City etc. Ry. Co. v. Blaker, 68 Kan. 244, 75 P. 71, 1 Ann. Cas. 883, 64 L. R. A. 81; Milwaukee Ry. Co. v. Kellogg, 94 U.S. 469, 24 L.Ed. 256; Louisville etc. Ry. Co. v. Nitsche, 126 Ind. 229, 22 Am. St. 582, 26 N.E. 51, 9 L. R. A. 750; Union P. Ry. Co. v. McCollum, 2 Kan. App. 319, 43 P. 97; Atchison etc. Ry. Co. v. Bales, 16 Kan. 252; 2 Thompson on Negligence, secs. 2291, 2295, 2298, 2302, 2310; Fent v. Toledo etc. Ry. Co., 59 Ill. 349, 14 Am. Rep. 13.)

The rule announced in the Cook case, cited by appellant, is contradictory of the rule of law announced in Union P. Ry. Co. v. McCollum, supra; Thoburn v. Campbell, 80 Iowa 338, 45 N.W. 769; McClellan v. St. Paul etc. Ry. Co., 58 Minn. 104, 59 N.W. 978; Thomp. on Neg., secs. 65, 75, 739, 2305; 29 Cyc. 496; 21 Am. & Eng. Ency. of Law, 495.

AILSHIE, C. J. Sullivan and Stewart, JJ., concur.

OPINION

AILSHIE, C. J.

This action was instituted for the recovery of damages for the loss of timber and other personal property caused by a fire alleged to have been set by one of the defendant's locomotives. The case went to trial and resulted in a verdict and judgment in favor of the plaintiff in the sum of $ 1,062, from which defendant appealed.

The principal controversy in this case is over the sufficiency of the evidence to support the verdict. The other points raised are incidental to this main question.

It appears that two fires were started, one near Cocolalla station and another in the neighborhood of what is designated Dufort Spur. It is conceded that respondent's property was destroyed by fire. It is also admitted that the appellant is responsible for the starting of the fire on what is known as the Raymond property near the Cocolalla station. This court has held in a previous case that the appellant was liable for the starting of the Cocolalla station fire (Fodey v. Northern Pacific Ry. Co., 21 Idaho 713, 123 P. 835), and appellant admits in this case that it is responsible for the consequences...