Pielke v. Chi., M. & St. P. Ry. Co.

• Decision Date: 04 February 1889
• Citation: 5 Dak. 444,41 N.W. 669
• Parties: Pielke v. Chicago, M. & St. P. Ry. Co.
• Court: South Dakota Supreme Court

41 N.W. 669

5 Dak. 444

Pielke

v.Chicago, M. & St. P. Ry. Co.

Supreme Court of the Territory of Dakota.

Feb. 4, 1889.

Appeal from district court, Richland county.

Action by Michael Pielke against the Chicago, Milwaukee & St. Paul Railway Company, for damages resulting from a fire set by an engine operated on its road. The following is a diagram of the premises:

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Alfred Wallin, for appellant. W. S. Lauder, for respondent.

TRIPP, C. J.

This is an action brought to recover for damages sustained by fire alleged to have been set by defendant's engine upon its right of way, which spread and extended to plaintiff's land, destroying hay, buildings trees, and other property. There is no contest between plaintiff and defendant but that the fire occurred which did the damage, and that the amount of damages found by the jury is a reasonable and proper amount; but the defendant insists that it did not set the fire, and that the evidence is insufficient to sustain the verdict in that respect.

It appears from the abstract in the case that in the fall of 1885, some time in the last part of September or forepart of October, the defendant's railway ran and was located across sections 6, 7, and 18, township 135, range 149, extending in a north-westerly direction. The plaintiff was the owner of certain lands in section 5, about a mile in a north-easterly direction from where the fire was first discovered. The theory of the plaintiff is that the train of defendant, passing south in the forenoon, set fire to the dry grass upon its right of way adjoining the land of one Johnson, in section 7; that this fire backed south against the wind during the forenoon, and was the same fire that was discovered in the afternoon running in a northeasterly direction, and which damaged the plaintiff. There is a section road running east and west between sections 6 and 5 on the north, and 7 and 8 on the south. In section 7, immediately south of this road, and adjoining the railroad on the east side, was a field of breaking, belonging to one Erick Johnson, extending north and south about one-half mile, and occupying the triangular piece of land on the east side of the railroad, except a small piece of prairie in the angle where the railroad and highway cross each other, and a small building spot south of the highway, and between it and the breaking. Along the railway, and between the road-bed and breaking, the right of way was covered with dry grass, some of which had been mowed, and lay upon the ground. Along this right of way, and parallel with the railroad, there was also a carriage road used by teams and carriages.

Lindgren, a witness for the plaintiff, testified that during the forenoon he was at work on his place on section 6, north of the section-line road, and saw the defendant's train go south, and that in a few moments thereafter a fire sprang up along the right of way “close into the track,” at about the southern angle of the triangular piece of prairie between the Johnson breaking and the railroad; that this fire burned over this small piece of prairie, and burned up to Johnson's buildings, but that he succeeded in saving the buildings and stacks, and “put out the fire;” that after dinner, and about 2 o'clock in the afternoon, he discovered “another fire” about 40 rods further south, and at the south extremity of Johnson's breaking; that the wind was then blowing from the south-west towards the plaintiff's premises, which it soon reached, and did the damage complained of. This witness did not see any fire after the fire in the forenoon until the fire about 2 o'clock p. m., nor did any one but him see the fire in the forenoon. Witness was permitted to give his opinion that the fire he saw in the morning backed south against the wind until it got past the Johnson breaking, and then was carried in a north-easterly direction onto the land of plaintiff; and one other witness, Mr Dow, one of plaintiff's attorneys, was permitted to testify that something over a week after the fire he examined the premises, and found the prairie grass on defendant's right of way between the road-bed and the Johnson breaking burned off, and the entire right of way west of the breaking burned over.

Defendant contends- First, that the evidence was insufficient to prove there was any fire in the forenoon; second, that there is no evidence to prove that the fire in the forenoon and the fire in the afternoon were the same.

1. It is true that much suspicion is thrown upon the evidence of Lindgren as to the fire he claims to have extinguished west of the Johnson breaking. The land in that vicinity is shown to be comparatively level, with nothing to obstruct the vision for several miles, and along the entire right of way where the fire is claimed to have originated. A number of people were at work during the entire forenoon in the vicinity, and in full view of the premises. Mr. Marty, a witness for the plaintiff and defendant, both testified that he was at work in section 8, across a quarter section from the Johnson breaking, and in full view of it; that he was plowing during the forenoon; that he saw no fire, and that if there had been a fire he could and probably would have seen it; that the first fire he saw was about 2 o'clock in the afternoon, south of the Johnson breaking. Erick Johnson, the owner of the Johnson breaking and premises, testified that he was away from home during the forenoon; that when he got home in the afternoon the fire had gone past his place to the north-east, and that Lindgren, the witness, was there, and had his oxen and team there, and told him (Johnson) that he had put out the fire around his (Johnson's) place, but did not say anything about a fire in the forenoon. Swan Swanson testified that during the forenoon he was plowing on the east side of the railroad, and south of the Johnson premises, and saw no fire during the forenoon; that he was at Anderson's place on section 8, east of the school-house, when the fire started on the right of way south of the Johnson breaking, and that it was “round like,-just as if it had been lately started.” Ole Anderson, for whom Swanson worked, testified that during the forenoon he was plowing in section 8, at the south-east corner of the north-west quarter; that there was nothing to obstruct his view, and that, if there had been a fire on the right of way, he could and probably would have seen it; and he further ventures the opinion that he “don't believe there was any such fire there in the forenoon;” that he was at his own house when the afternoon fire started; that it started directly west of his house, and west of the school-house, and south of the Johnson breaking,-about 50 or 60 rods; that he raised up from his seat, and said to Swan, “There is a fire just starting;” and that it was just about 2 o'clock at that time. Ethleen Kuppenberg, a school-teacher, was at the school-house in section 7, west of Anderson's house, towards the railroad, and testified that she was “on the watch for prairie fires;” that the first fire she saw was about 2 1/2 p. m., directly west from the school-house, near the railroad; that “it had just started;” that she is positive as to the time, owing to her recess that day; and that she never heard of any forenoon fire until a week ago.

The evidence as to the forenoon fire rests almost entirely upon the testimony of Lindgren. No one else saw it, though they had nearly equal opportunities with him, and were no doubt actuated by the usual vigilance that characterizes the observation of the farmer at that time of year with reference to prairie fires. There was, however, no impeachment of this witness. He swore positively to the facts, as he claimed them, and no motive was shown for willful false swearing upon his part. The jury have had the opportunity of seeing the witnesses, and weighing their testimony, under the instructions of the court; and the lower court has denied a new trial on this ground, and we cannot, without violence to the law governing appellate courts, disturb the finding.

2. Is there sufficient evidence to prove that the fire in the forenoon and the fire in the afternoon were the same fire? A careful analysis of the evidence, and the proceedings had, convinces us that one proposition of law has been entirely overlooked in the trial and consideration of this case; and while we deem the question properly here, under the exceptions taken, no reference has been made to it directly in the argument of counsel, nor was it mooted in the trial of the lower court; and that is, the entire absence of any evidence to show that the fire, if it resulted from the forenoon fire, was a continuous one, or that the fire in the forenoon was the proximate cause of the damage sustained by the plaintiff. It was from a mile to a mile and a half from the initial point of the fire first seen in the afternoon to the premises of the plaintiff. The fire, in its most direct course, must cross the farm of several others, besides the highway; and while the fire seen at the right of way in the afternoon, or the “afternoon fire” as it is designated by the witnesses themselves, is shown to have been continuous, there is not only an entire absence of any showing that the fire seen by Lindgren continued to burn and was the same fire that did the injury, but the positive evidence is that the forenoon fire was entirely extinguished. At most, there is a mere opinion of the witnesses that the forenoon fire backed up and became the afternoon fire; and there is some evidence that the right of way along which it would have made such journey was burned over. But all this could have been done by the fire seen first in the afternoon. It could have run west of the breaking at the same time it ran east. No one pretends to say it did not, and, if the evidence of Lindgren is to be believed, there was but little left on the west side of the breaking to burn when he put out the forenoon...