Swanstrom v. Minneapolis, St. P. & S. S. M. Ry. Co.

• Decision Date: 27 April 1916
• Citation: 34 N.D. 141,157 N.W. 976
• Court: North Dakota Supreme Court
• Parties: SWANSTROM v. MINNEAPOLIS, ST. P. & S. S. M. RY. CO.

34 N.D. 141

157 N.W. 976

SWANSTROM

v.MINNEAPOLIS, ST. P. & S. S. M. RY. CO.

Supreme Court of North Dakota.

April 27, 1916.

Syllabus by the Court.

In an action to recover damages for the destruction by fire of a grove of trees, which fire was negligently caused by sparks from defendant's locomotive, the specifications of error merely challenge the correctness of the trial court's order denying defendant's motion for a new trial. The sole ground of such motion was that the damages awarded by the jury are excessive and appear to have been given under the influence of passion and prejudice.

Evidence examined, and held, that the specifications are without merit.

In determining whether the verdict was the result of passion and prejudice it is not the province of this court to weigh the evidence further than to satisfy itself, as a matter of law, whether the jury must have been thus actuated in assessing the damages, and unless the verdict is so grossly and palpably excessive as to shock the moral sense of justice and to raise a reasonable presumption that the jury must have been influenced by passion or prejudice, an appellate court will not interfere.

Appeal from District Court, Bottineau County; A. G. Burr, Judge.

Action by Carl J. Swanstrom against the Minneapolis, St. Paul & Sault Ste. Marie Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.John E. Greene and Palda, Aaker & Greene, all of Minot (Alfred H. Bright and John L. Erdall, both of Minneapolis, Minn., of counsel), for appellant. Bowen & Adams, of Bottineau, for respondent.

FISK, C. J.

Plaintiff sued to recover damages in the sum of $1,150 alleged to have been sustained by him through a fire negligently started by sparks emitted from defendant's locomotive on October 23, 1913, and which fire he alleges destroyed his grove of trees of the value of $1,000 and his barn of the value of $150. A verdict was rendered in plaintiff's favor for the sum of $800 for injury to the grove, and $20 for the injury to the barn. A motion for a new trial was made upon the sole ground of alleged excessive damages appearing to have been given under the influence of passion and prejudice, which motion was denied, and defendant appeals both from the order and the judgment entered pursuant to the verdict.

The negligence of the defendant in setting the fire is conceded, and also that such fire spread to plaintiff's premises causing some injury to his trees, but it is defendant's contentionthat the jury in assessing the damages was manifestly actuated by bias and prejudice. As before stated, this is appellant's sole ground of complaint, and his specifications on this appeal will accordingly be restricted to this one ground.

We deem appellant's specifications without merit. While, in view of the testimony, the award of damages seems to be quite liberal, yet we are not justified in holding, as a matter of law, that it is so excessive as to disclose passion and prejudice on the part of the jury; nor are we justified in holding, as a matter of law, that the verdict is without support in the evidence. In justification of this conclusion all we need do is to give a summary of the testimony of plaintiff and his witnesses as printed in appellant's brief. It is as follows:

“Carl J. Swanstrom: I am an unmarried man; I live with my father 2 miles west of Newburg, about 5 miles from my land. On the 23d of October, 1913, I was the owner of the southeast quarter of section 21, township 160, range 80, in Bottineau county. I have owned it since about 1902. The Soo Railway runs through my land, east and west, pretty close to the middle. I have a grove on my farm, just about in the middle of the quarter. It runs north and south up to the railroad track. In the spring of 1908 I planted about 1,000 trees. During 1909 I planted about 3,000 trees. When planted, they were in height I should judge from 4 to 5 feet. The length of the grove was 80 rods. It begins pretty near the right of way. On the 23d of October a fire started on the right of way and burned southeasterly through my grove, striking the road a little ways from the northwest corner of it, probably about 6 or 7 rods from the northwest corner. It burned right through east. It burned clear through except one corner-the southwest corner. I should judge there was left unburned a tract about half the size of this courtroom, possibly a little bigger. The first year I planted trees they were hoed by hand. After I planted trees in 1909, they were all hoed after the last planting. I disked through the grove a couple of times. I don't remember just how I did cultivate them in 1909. One year they got so full of thistles I could not get the horses in. The land is rather light there and the thistles grow very easy. The grove is planted on a kind of a ridge. I disked them in 1910. I am not certain whether I cultivated them in 1911. I know I took good care of them up to the time they got so full of thistles I couldn't get any horses in there. After the fire went through according to what I counted, I am not exactly sure, but my brother and I tried to get it as close as possible, 3,713 had been burned. I didn't count the trees before the fire. There was not a large number dead before the fire, although there were some right in the center of the grove, perhaps between 200 and 300 trees actually dead before the fire. Most of the trees leaved out this spring but gradually kept dying out. They didn't all of them live through the summer. The trees I planted were golden Russian willow, Carolina poplar, white ash and box elders. The value of the land before the grove was burned was about $4,000. After the fire had passed through the grove, I should judge the value of the land was about $2,700.

Cross-examination: I lived on the farm in...