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

• Decision Date: 22 April 1933
• Docket Number: No. 6082.,6082.
• Citation: 248 N.W. 268,63 N.D. 332
• Court: North Dakota Supreme Court
• Parties: TAYLOR v. MINNEAPOLIS, ST. P. & S. S. M. RY. CO.

63 N.D. 332

248 N.W. 268

TAYLOR

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

No. 6082.

Supreme Court of North Dakota.

April 22, 1933.

Syllabus by the Court.

1. On an appeal from a judgment on the ground that the court erred in failing to direct a verdict, the only question presented to this court for review is the sufficiency of the

evidence to sustain the verdict, regardless of conflicting testimony.

2. In determining this issue the court must adopt that view of the evidence which is most favorable to the opposing party.

3. Where upon the trial of a case plaintiff fails to convince the jury he is entitled to a verdict, and the trial court is of the opinion that the defendant is entitled to judgment of dismissal, upon the record presented, but, instead of signing a formal order for judgment in favor of the defendant, grants plaintiff's motion for a new trial upon newly discovered evidence.

Held, that in the granting of this new trial the plaintiff is in the position of one having had judgment for dismissal entered against him, the same thereafter set aside, and a new trial granted. Therefore, the plaintiff, though the prevailing party on the second trial, is not entitled to include the costs incurred on the first trial, in the taxable costs of the second trial.

Appeal from District Court, Burleigh County; R. G. McFarland, Judge.

Action by Warren Taylor against the Minneapolis, Saint Paul & Saulte Ste. Marie Railway Company. Judgment for plaintiff, and defendant appeals.

Judgment modified and, as so modified, affirmed.

F. E. McCurdy, of Bismarck, for plaintiff.

Dullam & Young, of Bismarck, and Conmy, Young & Conmy, of Fargo (John E. Palmer, of Minneapolis, Minn., of counsel), for defendant.

BURR, Judge.

Plaintiff sues on ten causes of action, claiming damages in excess of $12,000 by reason of a prairie fire alleged to have been caused by employees of the defendant burning grass on the defendant's right of way and permitting the fire to spread to the premises of the plaintiff and other claimants, these claimants having assigned their claims to plaintiff. The defendant enters a general denial, after admitting its own incorporation.

At the close of the plaintiff's case the defendant moved for a directed verdict. The motion was renewed at the close of the case and was denied by the court.

The jury returned a verdict in favor of the plaintiff for $6,541.76, and from the judgment entered thereon the defendant has appealed.

There are but two specifications of error, though stated in three forms-it is alleged the court erred in overruling the motion for a directed verdict, and erred in entering an “order denying the defendant's motion to modify the judgment by eliminating witness fees on the first trial of this action.”

[1][2] The only question presented on the first motion is the sufficiency of the evidence to sustain a verdict; regardless of conflicting testimony (Thompson v. Smith, 45 N. D. 479, 480, 178 N. W. 430); and in determining this we must adopt that view of the evidence which is most favorable to the opposing party (Chubb v. Baldwin Piano Co., 54 N. D. 189, 192, 208 N. W. 975;Schantz v. N. P. R. R. Co., 42 N. D. 377, 385, 173 N. W. 556;Barkley v. Quick et al., 33 N. D. 124, 130, 156 N. W. 544;John Miller Co. v. Klovstad, 14 N. D. 435, 440, 105 N. W. 164;Warnken & Co. v. Langdon Merc. Co., 8 N. D. 243, 244, 77 N. W. 1000).

The plaintiff does not contend that the fire was set by sparks from a passing train; but that employees of the company, engaged in burning off the right of way, in some way permitted the fire to spread-either by smouldering embers which were fanned into flame and driven by the wind, or by fire which escaped when set, or by some other method directly traceable to the negligence of these employees.

It is apparent therefore that, if there be evidence in plaintiff's case which reasonable men can say substantiates his theory, then there was no error in denying the motion.

For a proper understanding of the issue it may be well to state some undisputed facts. That property was destroyed by fire on the day involved is beyond question and the amount of the verdict is not in dispute. Part of defendant's railway system runs in an easterly direction, angling somewhat to the northeast, through sections 3, 4, 5, and 6 of township 137, range 78. On October 5, 1928, a prairie fire started on or near that part of the defendant's right of way in the southeast quarter of section 5 and the southwest quarter of section 4, which lies south of the track, the exact spot being in dispute. The right of way is 50 feet wide on each side of the center of the railroad track at the points involved. Adjacent to and south of the right of way is what is called a prairie road which, beginning at the point where the section line between sections 5 and 6 crosses the track on the south, runs roughly parallel to the railroad track, on easterly through and past sections 5, 4, and 3, and averages 150 to 200 feet south from the track. This road is the familiar prairie road with well-worn wheel tracks and grass growing in the center. To the south of this road is an old fire break which had not been plowed since 1926. Between the prairie road and the railroad track is what was called the new fire break, three 14-inch furrows wide, and plowed first in 1927, and replowed in July, 1928. The witness Scarborough had his home on the west side of the southwest quarter of section 3, and over one-quarter of a mile north of the track. The plaintiff's home was close to the southwest corner of the southwest quarter of section 4 and south of the track. A place known as Welch Spur is about equal distance between them. Taylor crossing is the spot where the section line between sections 4 and 5 crosses the track. The witness O. P. Welch had a flax field in section 5, lying north of the track and coming down to about 60 rods from the right of way.

The burned area involved-whether burned over on October 2d or October 5th and thus the result of two separate and distinct fires-had its northern limit on the south right of way close to the track and its northwestern limit a few rods east of the quarter line running north and south through section 5. From these points it extended along the right of way over to the Taylor home northeast, and from these northerly points spread in a southeasterly direction several miles, widening as it spread. Defendant's witness Stewart lived near the southwest corner of the southwest quarter of section 6, about a mile and a half from the portion of the burned area nearest to him.

When we consider plaintiff's case, we note: Mr. O. P. Welch testified that on October 5th he was working in his flax field, beginning work about 8 a. m. Between 9 and 10 o'clock that morning he saw smoke coming from his land on the south side of the track, in section 5. His flax field ran north and south and, as he came south cutting, he saw the smoke in front of him. The wind at that time was from the southwest. Sometimes the smoke would be heavier than at other times. At that time he saw a portion of the railroad equipment for the section men-a hand car standing at the crossing on the east side of section 5-and saw the section men in that neighborhood about that time. About noon he finished his work and went to his home a mile and a half north. At that time the wind had risen somewhat and veered to the west-the smoke still rising-and he noticed “the smoke was getting stronger there.” He kept his eye on it and as it got heavier the smoke “seemed to be scattered along” and then he “saw the fire go out over along toward the east.”

Another witness for the plaintiff testified he drove east along the prairie road about noon; he saw the fire guard, and saw there was fire between the fire break and the track. Later, on cross-examination he said it was the next day that he noticed the burned area; but again he testified that he saw this particular fire “on the road that goes by” the plaintiff's place. Two or three days afterwards he was over the same territory and he saw where the fire had burned. Robert Welch testified that for two or three hours in the forenoon of October 5th he saw smoke along the right of way close to the east line of section 5.

Another witness for the plaintiff testified that on October 5th, about noon, he drove along that road, crossing the railroad track near the plaintiff's buildings. He came to the railroad right of way immediately south of the track and noticed “it was burned part of the way between the fire guard and the track, burned all the way up west,” and when asked if “any fire burning then?” answered, “Yes, sir, some farther west.” He testified the fire was between the fire guard and the track. On cross-examination he said he saw smoke and a little flame on the right of way about the middle of section 5. He testified that there were patches of grass remaining unburned on the right of way between the place where he saw “smoke west and where the fire was”; although it was about a week after this before he knew of the loss by fire.

John Welch, another witness for the plaintiff, though working a mile and a half or two miles from this place, saw “smoke on the south side of the railroad” near the center of the section, about 9 o'clock that morning, saw this in different places, and this continued for a “couple of hours off and on.”

Another witness for the plaintiff testified that on the day of the fire he was at work about three miles away; that shortly before noon he noticed smoke showing up and realizing it was a prairie fire went over to help to fight it.

The witness Scarborough said that on the forenoon of October 5th, 1928, and between 9 and 10 o'clock of that day, he “observed carefully there was quite a bit of smoke along the railroad track for about a mile and three quarters” from where he was working, on section 3, and that this smoke came from the south of section 5. He testified that it seemed to...