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

• Decision Date: 03 May 1897
• Docket Number: 361.
• Parties: MINNEAPOLIS, ST. P. & S.S.M. RY. CO. v. EMERSON et al. [1]
• Court: U.S. Court of Appeals — Seventh Circuit

80 F. 993

MINNEAPOLIS, ST. P. & S.S.M. RY. CO. v. EMERSON et al. ^[1]

No. 361.

United States Court of Appeals, Seventh Circuit.

May 3, 1897

Michael H. Bright and Charles B. Keeler, for plaintiff in error.

W. H Flett, for defendants in error.

Before WOODS, JENKINS, and SHOWALTER, Circuit Judges.

WOODS Circuit Judge.

The defendants in error recovered a judgment against the plaintiff in error for damages caused by fire to timber lands and to logs, poles, posts, and other forms of timber accumulated near the tracks of the company's railroad of Romulus, Lincoln county, Wisconsin. The negligence charged in the declaration consisted in carelessly managing, operating and running a locomotive, not properly equipped and constructed to arrest sparks, so as to set fire to grass weeds, and brush which had been mowed and carelessly permitted to remain upon the company's right of way until extremely dry and inflammable, whereby fire from a locomotive was communicated 'to the property, premises, and effects of the plaintiffs, and burned and destroyed the same. ' The chief question is whether the court erred in refusing to direct a verdict for the plaintiff in error. It would be a laborious task, unavailing as a precedent or for any useful purpose, to summarize the evidence. The contention of the plaintiff in error is: First, that the established facts in the case point conclusively to a neighboring forest fire as the cause of the damage to the plaintiff's property; and, second, that if the evidence falls short of the first proposition, it throws the question 'whether the engine caused the loss into the field of conjecture ' These questions were submitted to the jury upon a charge which could not have made it more clear that the plaintiffs could not recover unless the jury was satisfied by a preponderance of the evidence, and able to say 'with a reasonable degree of certainty,' what caused the fires seen on the right of way of the company; 'that the fire was caused in the manner specified in the declaration'; 'that the whole damage was caused that way'; and that, if the preponderance of the evidence was that the fire was caused in some other way, no matter what, or if the evidence was equally balanced, leaving the cause of the injury 'in the realm of conjecture' and the jury unable to 'settle down to any final conclusion from a preponderance of the evidence,' the verdict should be for the defendant. That the...