Nelson v. Chicago, B. & Q.R. Co.

• Decision Date: 25 February 1924
• Docket Number: 5233.
• Citation: 197 N.W. 288,47 S.D. 228
• Parties: NELSON v. CHICAGO, B. & Q. R. CO.
• Court: South Dakota Supreme Court

197 N.W. 288

47 S.D. 228

NELSON v. CHICAGO, B. & Q. R. CO.

No. 5233.

Supreme Court of South Dakota

February 25, 1924

Appeal from Circuit Court, Fall River County; Walter G. Miser Judge.

Action by Victor E. Nelson against the Chicago, Burlington & Quincy Railroad Company. Judgment for plaintiff, and defendant appeals from judgment and order denying new trial. Judgment and order affirmed.

Byron Clark, of Omaha, Neb., E. B. Adams, of Hot Springs, and J. W Weingarten, of Omaha, Neb., for appellant.

Helm & Lewis, of Hot Springs, for respondent.

GATES J.

Plaintiff recovered judgment against defendant for the value of grass alfalfa, and hay alleged to have been burned by defendant's locomotive engine. This appeal is from the judgment and order denying new trial.

The evidence tended to show that shortly after appellant's west-bound train from Hot Springs to Minnekahta went past respondent's land on the morning of October 14, 1921, smoke was seen arising from or near the right of way. It was seen by several persons, all of whom were some distance away. When the witnesses came to the burned tract it was discovered that quite a large area had been burned outside the right of way and within the right of way. From the direction of the wind and the appearance of the burned area it appeared that the fire had started on the right of way near the track and had burned from west to east about 30 to 40 rods on the right of way and had then spread out on respondent's land. Appellant's train had been proceeding upon an upgrade, and the apparent point of origin of the fire was near the apex of the grade. It also appeared that dry grass and weeds had accumulated on the right of way and between the rails, and that in places along the track were what the witnesses called large "gobs" of oil.

The evidence on the part of appellant tended to show that the locomotive was an oil burner of the latest approved type, in good-working order and carefully handled, and that it was impossible for it to have started the fire. However appellant's master mechanic testified:

"In sanding an engine some of the lighter particles will go through, but I wouldn't say that it come out red hot. I never saw sand come out at night, of the flues in a shower of sparks. *** I have never seen red hot sand pass out of the smokestack. I have at times seen small particles of very fine soot, which had the appearance of being ignited, that appeared to be lit a very short time, practically to time at all, and then they would disappear over the stack and be extinguished."

The section foreman also testified that three fires of unexplained origin had started on the right of way during the last 2 1/2 years. No evidence was produced at the trial tending to show the existence of any fire-producing agency, other than the locomotive, that could have been responsible for the fire.

It is the contention of appellant that the evidence on its behalf completely refutes the presumption that it locomotive caused the fire arising from the fact that the fire was shown to have started shortly after the passing of the train; that the evidence is wholly insufficient to sustain the verdict; that the court erred in this behalf in its instructions and in its refusal to direct a verdict for appellant.

The fact that the fire started shortly after the passing of the train raised a presumption that it was caused by appellant's locomotive, and, there being no evidence of any other fire-producing agency that could have caused the fire, a prima facie case was made for plaintiff. Kelsey v. C. & N.W. Ry. Co., 1 S. D. 80, 45 N.W. 204; Yankton Fire Ins. Co. v. F. E. & M. V. R. Co., 7 S. D. 428, 64 N.W. 514; Gram v. N. P. R. Co., 1 N. D. 252, 46 N.W. 972; McGilvra v. Minn., St. P. & S. S. M. Ry. Co., 35 N.D. 275, 159 N.W. 854; Karsen v. M. & St. P. Ry. Co., 29 Minn. 12, 11 N.W. 122; Dean v. C., M. & St. P. Ry. Co., 39 Minn. 413, 40 N.W. 270, 12 Am. St. Rep. 659; Babcock v. Canadian Northern Ry. Co., 117 Minn. 434, 136 N.W. 275, Ann. Cas. 1913D, 924; Farrell v. Minn. & R. R. Ry. Co., 121 Minn. 357, 141 N.W. 491, 45 L. R. A. (N. S.) 215; Johnson v. C. & N.W. Ry. Co., 77 Iowa, 666, 42 N.W. 512; Black v. Minn. & St. L. Ry. Co., 122 Iowa, 32, 96 N.W. 984; Meier & Lockwood Co. v. Dak. L. S. & Inv. Co., 46 S.D. 397, 193 N.W. 138.

While the evidence on the part of the appellant tended to refute the possibility that the fire could have been started by appellan...