Smith v. Northern Pacific Railroad Company

• Decision Date: 26 August 1892
• Citation: Smith v. Northern Pacific Railroad Company, 53 N.W. 173, 3 N.D. 17 (N.D. 1892)
• Court: North Dakota Supreme Court

53 N.W. 173

3 N.D. 17

FRED. H. SMITH v. NORTHERN PACIFIC RAILROAD COMPANY

Supreme Court of North Dakota

August 26, 1892

Appeal from District Court, La Moure County; Rose, J.

Action by Fred. H. Smith against the Northern Pacific Railroad Company, for damages caused by a prairie fire set by one of defendant's locomotives. Judgment for plaintiff. Defentant appeals.

Reversed.

Judgment reversed, and a new trial ordered.

W. F Ball and J. S. Watson, (John C. Bullitt, Jr., of counsel,) for appellant.

Section 5097, Comp. Laws of N.D., is identical with § 580, Code of Civil Procedure of California. Under this section it has been held that if there is an answer, the court may disregard the prayer in the complaint and give the plaintiff suitable relief. Truebody v. Jacobson, 2 Cal. 283; N. C. & S. C. Co. v. Kidd, 37 Cal. 301; Cassacia v Phoenix Co., 28 Cal. 628. Until it is in some way shown by the record that the sum demanded is not the matter in dispute, that sum will govern in all questions of jurisdiction; but when it is shown that the sum demanded is not the real matter in dispute, the sum shown and not the sum demand, will prevail. Hilton v. Dickinson, 108 U.S 165; Wilson v. Daniel, 3 Dall. 401; Elgin v. Marshall, 106 U.S. 578; Platt v. Phoenix Co., 37 F. 730; Hullscamp v. Teel, 2 Dallas 358; Gordon v. Longist, 16 Pet. 97; Barry v. Edmonds, 116 U.S. 550. The presumption of negligence cast upon defendant by proof that it set out the fire, is a presumption of law and not of fact. In Johnson v. N. P. R. R. Co., 1 N.D. 354; S. C., 48 N.W. 227; it is said that proof of the setting out of fire creates a disputable presumption of negligence. This decision established the same rule with respect to imputed negligence in fire cases as already existed by force of statute in stock-killing cases. Section 5501, Comp Laws. This section of statute construed in, Volkman v. C., St. P., M. & O. R. R. Co., 5 Dakota 69; S. C., 37 N.W. 731; Knapp v. Bank, 5 Dakota 378; S. C., 40 N.W. 587; Gay v. R. R., 5 Dakota 514; S. C., 41 N.W. 757; Huber v. C. M. & St. P. R. Co., 6 Dakota 392; Pattee v. C. M. & St. P. R. R. Co., 5 Dakota 267; S. C.; 38 N.W. 435. It is a question for the court to determine when this prima facie evidence is overcome. Railroad Co. v. Wamscott, 3 Bush. 149; Railroad Co. v. Talbot, 78 Ky. 621; Railroad v. Packwood, 7 A. & E. R. R. C. 584; where the rebutting testimony is as broad as the negligence alleged and in all points refutes it, it is for the trial court to pass upon the question and withdraw it from the consideration of the jury. R. R. v. Reese, 85 Ala. 497; Telley v. R. R., 49 Ark. 535; R. R. v. Quantance, 58 Ill. 389; R. R. v. Clampit, 63 Ill. 95; R. R. v. Campbell, 86 Ill. 443; R. R. v. Goyette, 133 Ill. 121; Railroad v. Gibson, 42 Kan. 34; R. R. v. Brinkman, 64 Md. 52; Hoffman v. Railroad, 43 Minn. 334; Wise v. Railroad, 85 Mo. 178; Railroad v. Westover, 4 Neb. 68; Searles v. Railroad, 101 N.Y. 662; Cleveland v. Railroad, 42 Vt. 449; Spaulding v. Railroad, 30 Wis. 110; Contra. Ganda v. Chicago, etc., R. Co., 30 Iowa 20; Babcock v. R. R. Co., 17 N.W. 909; S. C., 13 N.W. 740; 28 N.W. 644. If sparks escape without negligence and inflict damage, the result must be borne by the party suffering the loss. Pelke v. R. R. Co., 5 Dakota 444; White v. R. R. Co., (S. D.) 47 N.W. 146; Gram v. R. R. Co., 1 N.D. 252; Johnson v. R. R. Co., 1 N.D. 354. Accident must be shown to have happened by defendant's negligence in order that it be held. The Nellie Flagg, 23 F. 671; Cooley on Torts, 670; Rudolph v. Fuchs, 44 How. Pr. 155; Houfe v. Fulton, 29 Wis. 296; Fernandez v. R. R. Co., 52 Cal. 45; Garrett v. Railroad, 77 Am. Dec. 423; Gagg v. Vetter, 13 Am. Rep. 322; Baulec v. Railroad,, 59 N.Y. 356; Commissioners v. Clark, 4 Otto 278. The presumption of negligence arising from proof of setting out of fire having been overcome by evidence, showing that the most approved appliances for preventing the escape of sparks were in use, that they were in good order and the engine carefully managed and operated by competent servants, the plaintiff cannot recover unless he then proves other acts of negligence which caused the fire to escape. Wise v. Joplin, 85 Mo. 178; Railroad Co. v. Pennell, 110 Ill. 437; 1 Thomp. on Neg. 155, Montgomery v. Muskegon, 50 N.W. 729.

Samuel L. Glaspel, for respondent.

The defendant by not returning the notice of trial and not making prompt objection thereto and not being misled thereby, waived any defects therein, Waits N. Y. Code, 448, note d; Ins. Co. v. Kelsey, 13 How. Pr. 535; Silliman v. Clark, 2 How. Pr. 160; Bander v. Covill, 4 Cow. 60. The presumption of negligence on one side and the rebutting evidence on the other produces a conflict and therefore an issue for the jury, Babcock v. R. R. Co. 17 N.W. 909; Dunning v. Bond 38 F. 813; Hoorer v. Ry. Co. 16 S.W. 480; Ry. Co. v. Bartlett, 16 S.W. 638. Proof that a cinder was thrown 118 feet from the track, was evidence for the jury from which they might infer negligence. Greenfield v. Ry. Co. 49 N.W. 95; to same effect, Ry. Co. v. McClelland, 42 Ill. 355; Doyscher v. Ry. Co. 45 N.W. 719; Ry. Co. v. Boss, 41 F. 917.

CORLISS, C. J. WALLIN, J., concurs. BARTHOLOMEW, J., did not sit on the hearing of the case, nor take any part in the decision.

OPINION

CORLISS, C. J.

The plaintiff and respondent has recovered judgment for damages occasioned by a prairie fire set out by one of defendant's locomotives. Before coming to the merits we, have several questions to dispose of. In due time the defendant presented to the District Court of the state its petition for removal of the cause to the Federal Circuit Court. The denial of this application for removal is assigned as error. The only point here involved is whether the matter in dispute in this case at the time of filing this petition exceeded, exclusive of interest and costs, the sum or value of $ 2,000. If not, the trial court was right in refusing to grant the prayer of the petition. If, on the other hand, it did exceed $ 2,000, the trial court had no jurisdiction, after the filing of the petition, to proceed further with the cause, and the judgment is void. We are satisfied we must sustain the action of the trial court in this behalf. While it is true that it is stated in the complaint that the value of the property destroyed by the fire was over $ 2,000, the plaintiff expressly limited his demand to that sum. This demand governs in actions of this character. Of course it might not control when in excess of the alleged value of the property destroyed. But the injured party may, if he sees fit, waive his right to recover full damages, and in that case the litigation involves only the amount which he seeks to recover. We cite, as sustaining our ruling on this point, Fost. Fed. Pr. § 16 and cases cited: Desty, Rem. Causes, p. 246, § 10; Dill. Rem. Causes, c. 16; De Camp v. Miller, 44 N.J.L. 617 at 617-620.

It is next urged that the court erred in proceeding with the trial of the case against the objections of the defendant, because, it is insisted, the notice of trial was insufficient. The notice stated that the issues would be tried at LaMoure, in the County of LaMoure, on the 1st day of September, 1891. As a matter of fact the term did not commence on that day, nor until September 15th, 1891. The term fixed by the statute would have commenced on the 4th Tuesday of October. Chapter 79, Laws 1891, § 4. But a term had been called by the district judge for September 15th, and it was at this term that plaintiff moved the cause for trial. The objection is devoid of merit. The only object of a notice of trial is to give the party on whom it is served a chance to prepare for trial. A notice of trial, erroneous as to the day of trial, is nevertheless sufficient, if such notice, when read in the light of other information which the law gives, truly informs the party as to the time and place of trial. The defendant could not have failed to understand that the purpose of the plaintiff was to insist on a trial of this cause at the next ensuing term to be held in LaMoure county. As the time of the holding of such a term was fixed by the call of the district judge, the defendant, in common with all others interested in the matter, had notice that a term would commence September 15th, and not September 1st, as stated in the notice of trial, and was therefore aware that the date in the notice was an error, and was bound to know what the correct date was. We are clear that the trial court was right in over-ruling the point. See Insurance Co. v. Kelsey, 13 How. Pr. 535. Where an error in the date of a notice of trial occurs, it cannot mislead the opposing party, as the date of the commencement of the term is a matter of which he is bound to inform himself, and a comparison of that date with the date specified in the notice of trial will always disclose the error.

The point is made that at a term called by the district judge under the statute no new business can be taken up, and no new cases placed on the calendar and tried. We think there is nothing in this point. The judge is authorized to call additional terms of court. Chapter 79, Laws 1891, § 10. There is nothing in the statute to limit the nature of the business to be transacted at such terms. They are as much terms of court as those fixed by the statute itself.

We now come to the merits of this litigation. Plaintiff had judgment below. It is contended by the defendant that although there is sufficient evidence to support the finding of the jury that sparks from defendant's engine set the fire which destroyed plaintiff's property, yet that, on the whole case, there was no question of negligence to submit to the jury. There was only one fire set out. We have already held that...