Sebelrud v. Minneapolis & St. Louis R. Co.

• Decision Date: 06 January 1882
• Citation: 29 Minn. 58,11 N.W. 146
• Court: Minnesota Supreme Court
• Parties: SIBELRUD v MINNEAPOLIS & ST. LOUIS R. CO.

29 Minn. 58

11 N.W. 146

SIBELRUDvMINNEAPOLIS & ST. LOUIS R. CO.

Supreme Court of Minnesota.

Filed January 6, 1882.

Appeal from order of district court, county of Freeborn.

Lovely & M morgan, for respondent.

John W. Whytock, for appellant.

DICKINSON, J.

Appeal from an order refusing a new trial. The action is for negligence in respect to the construction and operating of one of defendant's locomotives, by reason of which fire is alleged to have been communicated to the grass allowed to remain upon defendant's right of way, and thence to plaintiff's premises adjacent thereto, destroying his property. There was evidence going to show that the fire occurred at a time when vegetation was very dry; that tall dry grass had been suffered to remain upon the right of way within a few feet of the track, and adjacent to plaintiff's premises; that the wind was high, and that the fire was caused by a passing locomotive of the defendant; that engines properly constructed have spark-screens over the smoke-stacks and the ash-pan under the fire-box, which, if closed, as they may always be, in running, will not permit sparks or coals to be thrown from the engine of greater diameter than three-sixteenths of an inch. One witness testified to being near the place where the fire started, and that he saw a coal of fire thrown from the engine of a size of about one and a half by two and a quarter inches, which, if the witness is to be believed, caused the fire in question. The engine was a coal-burner, and two other witnesses corroborate the former one by testifying that they saw such a coal at the place indicated a very short time after the fire started. It further appears that the screens to the ash-pan may be opened by the engineer or fireman within the cab, but that it would not be prudent to do so. The testimony of the engineer shows that they were not opened on this occasion, so far as he knows, but it does not appear that they may not have been opened by the fireman, who could have done so at pleasure.

The evidence is sufficient to sustain the jury in the conclusion that the defendant was chargeable with negligence, although several witnesses testified that the engine was in proper condition, the engineer a competent man for his place, and that he managed the engine to the best of his ability. It is very clear that the verdict cannot be disturbed in this case, when it is considered that by force of the statute, (chapter 34, § 60, Gen.St. 1878,) when the fire is shown to have been caused by the engine, presumption of negligence arises, and the burden is thrown upon the defendant to show...