Solum v. Great N. Ry. Co.

• Decision Date: 19 December 1895
• Parties: SOLUM v. GREAT NORTHERN RY. CO.
• Court: Minnesota Supreme Court

63 Minn. 233

65 N.W. 443

SOLUM

v.GREAT NORTHERN RY. CO.

Supreme Court of Minnesota.

Dec. 19, 1895.

(Syllabus by the Court.)

1. Held, in an action brought to recover damages caused by fire scattered or thrown by one of defendant's engines, that the complaint was sufficient to put defendant upon its proofs when plaintiff had made a prima facie ease under the statute.

2. Held, further, that upon the evidence it was for the jury to determine whether the statutory presumption as to the negligence of defendant's servants when operating and managing the engine had been rebutted and overcome.

Appeal from district court, Clay county; L. L. Baxter, Judge.

Action by Andrew O. Solum against the Great Northern Railway Company. Judgment for plaintiff. Defendant appeals. Affirmed.

Cy. Wellington, W. E. Dodge, and John W. Mason, for appellant.

M. R. Tyler and Charles S. Marden, for respondent.

COLLINS, J.

This was a fire case, in which a verdict was had against defendant corporation, the appeal being from the judgment. Upon the argument here appellant's counsel criticised the complaint, but, taking their own construction of it as found in their fourth request to charge, it alleged that defendant's locomotive was faulty in construction or repair, and that it was improperly or negligently managed or controlled at the time of or immediately before the fire; and further, that defendant was negligent in failing to keep its right of way cleared of grass, rubbish, and other combustible material prior to the setting of the fire. The allegations of the complaint were ample to put defendant upon its proofs when plaintiff had made a prima facie case under the statute. See Weber v. Railroad Co. (this term) 65 N. W. 93.

It is contended that the court below erred in denying defendant's motion to direct a verdict in its favor at the close of the testimony, and again when refusing to instruct as requested, which instructions amounted to a direction to the jury to find against the plaintiff. Two reasons are urged in support of this claim of error,-one, that it was not shown that the fire originated from sparks or cinders scattered or thrown from defendant's locomotive; and the other, that if this proposition is untenable, and the proof as to the cause or origin of the fire was adequate, the statutory presumption as to defects in the locomotive and negligence in its management was fully rebutted and completely overcome by proof clear, conclusive, to the point, and as broad as the presumption that the locomotive was in perfect condition and repair, was equipped with the best-known appliances for preventing the escape of fire, and was properly and skillfully managed and operated by competent employés. We do not deem it necessary to follow counsel in their efforts to show that there was no evidence that the fire originated from the locomotive numbered 111, which on that particular morning drew the passenger train known as “No. 2” from Barnesville to St. Paul. None of the witnesses produced by plaintiff were on the exact spot when or where the fire started, but several saw it start, and stated that immediately after the train passed going southerly, about 10 o'clock in the morning of a clear autumn day, they saw the fire spring up, and run rapidly in a northerly direction. One, at least, of these witnesses was not over three-fourths of a mile away, traveling upon the highway, and with an unobstructed view across the prairie. She testified that she plainly saw the fire break out “right alongside the track, right alongside the ditch, between the ditch and the ties.” Common experience teaches us that her statement that at the distance specified she saw the fire spring up at the...