Roehr v. Great N. Ry. Co.
| Decision Date | 08 November 1897 |
| Citation | 72 N.W. 1084,7 N.D. 95 |
| Parties | ROEHR v. GREAT NORTHERN RY. CO. |
| Court | North Dakota Supreme Court |
Where a jury follow instructions of the court, limiting them to a particular ground of negligence, their verdict cannot be sustained if there is no evidence to support a finding of that particular negligence, even though there was evidence in the case tending to prove other negligence, and such negligence was set up in the complaint.
Appeal from district court, Williams county; David E. Morgan, Judge.
Action by Herman Roehr against the Great Northern Railway Company to recover for hay destroyed by fire negligently set out by defendant. From a judgment for plaintiff, defendant appeals. Reversed.W. E. Dodge, for appellant. N. A. Stewart and J. H. Bosard, for respondent.
Plaintiff has recovered a judgment for damages caused by the alleged negligent setting out of a fire by one of defendant's locomotive engines. The property destroyed by the fire was hay. That plaintiff was the owner thereof does not admit of doubt. It was cut by him on the land of another, under an agreement with the owner of such land, by the terms of which plaintiff was sold the right to cut such hay. The land had been filed on at the time the plaintiff made this agreement and severed the grass, and was in the actual possession of the person with whom he made the contract. Two grounds of negligence are set forth in the complaint. It is alleged that defendant's servants negligently operated the engine, and also that it carelessly permitted combustible material to accumulate on its right of way, and that the fire caught thereon, and from that point spread to the plaintiff's land, and destroyed his hay. The judgment cannot be sustained on the theory of negligence in operating the engine; for while the complaint averred such negligence, and there was evidence to sustain the allegation, yet, the district court having instructed the jury that they could consider only the charge of negligence which related to the right of way, we cannot assume that the jury have found any other carelessness on the part of the defendant. Indeed, the jury, by their special verdict in the case, have negatived any possible inference that they intended to assert by their general verdict that there was any negligence in the operation of the engine. While we believe it was error to thus restrict the jury to a single ground of negligence where two grounds were set forth, yet the court's instructions became the law of the case, and the jury had no right to disregard them. Any verdict based upon a refusal to apply the law as laid down by the court would be a verdict against law, although the law itself was erroneously stated to the jury. Crane v. Railway Co. (Iowa) 37 N. W. 397;C. Aultman & Co. v. Reams (Neb.) 4 N. W. 81;Graham v. McGeoch (Iowa) 15 N. W. 592;Emerson v. County of Santa Clara, 40 Cal. 543.
It is possible that, in a case where it is clear that the jury have applied the correct rule of law, the verdict should not be disturbed. On that point we express no opinion. But in this case we have no right to assume, in the very face of the special verdict of the jury, that the general verdict rests upon a finding by the jury that the engine was carelessly managed by defendant's servants. It affirmatively appears that the jury have obeyed the instructions of the court, and that, therefore, they have not decided the case on the theory of any negligence other than that connected with the defendant's conduct with respect to the right of way. The question therefore is presented whether there is any evidence to support the finding that the fire started on the right of way. We think there is not. There was no direct proof...
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