Pielke v. Chicago, M. & St. P. Ry. Co.
| Decision Date | 25 May 1889 |
| Citation | 41 N.W. 669,5 Dakota 444 |
| Court | North Dakota Supreme Court |
Argued May 12, 1888
Opinion Filed: February 4, 1889
Appeal from district court of Richland county; Hon. W. B. McCONNELL Judge.
Judgment reversed and cause remanded.
Ball Wallin & Smith, for appellant.
It is conceded that there was no evidence, direct or circumstantial, that connected the defendant with the ignition of the fire which did the damage to the plaintiff; that is, the afternoon fire, if the same was separate and distinct from the morning fire.
Was there any evidence, direct or circumstantial, sufficient in law to establish any connection between the A. M. and the P. M. fire? See Gr. Ev. (Redf. Ed.) § 13; Commonwealth v. Webster, 5 Cush. 295, 312.
The fact sought to be proved was that the defendant ignited the afternoon fire, and that in fact it was but a continuation of that of the forenoon. In view of all of the facts and circumstances, no reasonable connection, in the relation of cause and effect, founded upon "experience, and observed facts and coincidents," could possibly be established between the two fires. Therefore, the court should have directed a verdict for the defendant, for the reason that there was no evidence from which the jury could reasonably find that the defendant caused the injury complained of.
Was there a fire in the morning? We think the evidence shows there was not.
The existence of the morning fire was one of vital consequence to the defendant; and, this being true, it is equally clear, under the adjudications, that the defendant under the evidence in this case was entitled at the hands of the court to a charge which would be explicit and emphatic on the point, and also to have such charge given in any proper language which should be chosen by the defendant's counsel. Such a request was framed, and presented to the court, but was refused. We submit that, while the learned justice who tried the case did several times during his charge to the jury allude to the matter of the origin of both the alleged A. M. fire and the conceded P. M. fire, that none of these references brought out and emphasized the vital nature of the question as to whether or not there was a fire in the morning as a distinct matter of fact. When the court last referred to the A. M. fire it used the following language: "Unless you find as a matter of fact that the fire first seen by Lindgren has a connection with this fire, the plaintiff expects a verdict for the defendant."
It is clear that the language was very prejudicial to the defendant in this: (1) It assumes the fact in controversy to be true, i. e., that there was in fact a forenoon fire; and (2) that the plaintiff's witness Lindgren as a matter of fact saw an afternoon fire.
A charge which assumes the existence of controverted facts is erroneous. Smith v. Dukes, 5 Minn. 301 (Gil.) ; Jones v. Towns, 26 Minn. 172, 2 N.W. 473.
We are satisfied that this inadvertence of the judge, together with the refusal to give the defendant's request in words chosen by its counsel, was error, which operated to the defendant's prejudice, and also was error of law under the authorities. Code Civil Proc. § 248; Galloway v. McLean, 9 N.W. 98.
W. S. Lauder and Folsom Dow, for respondent.
There are but two questions to be determined upon this appeal:
1. Was the fire which destroyed plaintiff's property set out by the defendant?
2. If this fire was set out by defendant, was defendant guilty of such negligence as would render it liable for the damages it occasioned?
In support of the view that the evidence was sufficient to warrant the jury in finding as a fact that the fire was started by a spark, coal, or cinder from defendant's locomotive, see Wood, Ry. Law, 1348; Pierce, R. R. 436, 437; Woodson v. Milwaukee & St. P. Ry. Co., 21 Minn. 60; Karsen v. Milwaukee & St. P. Ry. Co., 29 Minn. 12, 11 N.W. 122; Gibbons v. Wisconsin V. Ry. Co., 28 N.W. 170; Wolff v. Chicago, M. & St. P. Ry. Co., 25 N.W. 63; Butcher v. Vaca V. R. Co., 8 P. 174; Christ v. Erie Ry. Co., 58 N.Y. 638; Field v. N. Y. C. Ry., 32 N.Y. 339; Hoyt v. Jeffers, 30 Mich. 181, 91 U.S. 454.
It is contended by the appellant that the court erred in refusing to charge the jury that, "if you find as a fact from the evidence that no fire started in the forenoon, your verdict must be for the defendant."
We think that, had the jury returned a verdict for the defendant based upon the theory that no fire originated in the forenoon, as testified to, the same would have been in direct conflict with all of the evidence upon that point, and it would have been the duty of the court to have at once set it aside.
The court in his charge did not assume that there was in fact a forenoon fire. On the contrary, it left the whole question of the origin of the fire that destroyed the plaintiff's property to the jury.
In support of the second proposition, see Pierce, R. R. 434, and cases cited; Wood, Ry. Law, 1350, 1362, and cases cited; Sibilrud v. St. Louis Ry. Co., 29 Minn. 63, 11 N.W. 146; Kellogg v. Chicago & N. W. Ry. Co., 17 N.W. 132; Wolff v. Chicago, M. & St. P. Ry. Co., supra; Jones v. Mich. C. Ry. Co., 26 N.W. 662, and note; Gibbons v. Wis. V. Ry. Co., supra.
This is an action brought to recover for damages sustained by fire alleged to have been set out by defendant's engine upon its right of way, which spread and extended to the 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 the 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 latter 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 northeasterly 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...
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