Turner v. Great N. Ry. Co.

• Decision Date: 27 March 1937
• Docket Number: No. 6436.,6436.
• Citation: 272 N.W. 489,67 N.D. 347
• Court: North Dakota Supreme Court
• Parties: JAMES TURNER & SONS et al. v. GREAT NORTHERN RY. CO. et al.

67 N.D. 347

272 N.W. 489

JAMES TURNER & SONS et al.

v.GREAT NORTHERN RY. CO. et al.

No. 6436.

Supreme Court of North Dakota.

March 27, 1937.

Syllabus by the Court.

1. Section 4654, Comp.Laws 1913, which provides that, “All railroad companies or corporations operating or running cars or steam engines over roads in this state shall be liable to any party aggrieved for all damages resulting from fire escaping or being scattered or thrown from said cars or engines; provided, that such railroad company or corporation shall not be liable for said damages when the same results from the default or negligence of the party injured,” makes the railroad company absolutely liable for fires caused by fire escaping or being scattered or thrown from said cars or engines in all cases except when such damages result from the default or negligence of the party injured; but said section does not change the degree of proof required of the plaintiff to make a prima facie case against the defendant. He is still required to prove by a fair preponderance of the evidence, either direct or circumstantial, that fire escaping or scattered from the railroad engine or railroad cars set the fire.

2. Where the evidence in an action for the destruction of property by fire set by sparks from a locomotive is wholly circumstantial, the probative force of the evidence must be strong enough to induce in the minds of reasonable men the conclusion that the fire in fact originated from one of defendant's engines.

3. Where the evidence as to the origin of the fire points with substantially the same force to two or more independent sources, a jury should not be permitted to speculate as to which was in fact responsible.

4. Section 7625, Comp.Laws 1913 (as amended by Laws 1923, c. 332), which provides that, “They (the jurors) must be kept together in some convenient place under charge of an officer until they agree upon a verdict or are discharged by the court. * * * The officer having them under his charge must not suffer any communication to be made to them, or make any himself except to ask them if they have agreed upon a verdict,” is a mandatory statute intended to keep the conduct of the jurors and their verdict above suspicion and where a communication has been made to jurors after the case has been submitted to them and such communication might have affected the verdict, the verdict should be set aside unless it is shown that it could not have been affected.

5. Affidavits of jurors may be received for the purpose of avoiding a verdict to show any matter occurring during the trial or in the jury room which does not essentially inhere in the verdict itself, but such affidavits may not be received to show any matter which does essentially inhere in the verdict itself.

6. Where the issue in an action, against a railroad company to recover damages for the loss of property by fire, is as to the defendants' liability for causing the fire and not as to the extent thereof and the uncontradicted evidence tends to show the property burned to be of the value of $32,585.02, and the jury returned a verdict for plaintiffs for $10,000, the amount of the verdict returned is so grossly disproportionate to the amount which plaintiff's evidence tends to show the value of the property to be that it indicates a compromise verdict reached by some of the jurors surrendering their conviction that the defendants were not liable in order to reach a verdict.

7. The deliberations of the jurors are secret and ordinarily cannot be shown by the testimony of the jurors, nor can the jury room be invaded to show that the verdict rendered was a compromise.

Appeal from District Court, Grand Forks County; D. B. Holt, Judge.

Action by James Turner & Sons and others against the Great Northern Railway Company and another. Judgment for plaintiffs, and defendants appeal.

Reversed and remanded.

Murphy, Toner & Kilgore, of Grand Forks, for appellants.

Bangs, Hamilton & Bangs, of Grand Forks, for respondents.

BURKE, Judge.

This is an action to recover the value of property claimed to have been burned and consumed by a fire started by sparks from the locomotive engine belonging to the defendant Great Northern Railroad Company, and operated by the said defendant at the time.

The property is alleged to have been of the value of $32,585.02. The property was all the necessary buildings for a sash and door factory located on block 27 of McCormick addition to the city of Grand Forks, N. D. The first building nearest the railroad was the warehouse with two lower buildings attached and running nearly parallel with the railroad. The first of the lower buildings was called the moulding shed and the second a strip shed. Southeasterly from the warehouse was a small building for paint and oil. East of the warehouse was a driveway 34 feet wide, extending between the warehouse and the mill. On the west side of the mill and shop was a platform open on the face but with a roof over it and extending across towards the rear end of the warehouse and factory there was a bridge connecting the two buildings on the second floor. The rear end of the platform on the west or southwest side of the mill was inclosed. At the back end of the mill was the office. A little northwest of the mill was a power house and back of the power house was a dry kiln. The Great Northern right of way is 100 feet wide where it passed the property. Where it passed the strip shed, the center of the track was a little less than 50 feet from the shed, part of the mill property being on the right of way.

At 12:02 p. m. on April 17, 1932, Great Northern engine No. 718 left the yard with a box car destined for the Northern Pacific tracks. This engine passed the sash and door factory very soon after 12 o'clock at a speed of 8 miles per hour.

Albert Ruthoske testified that after he ate his noon meal he saw an engine. It passed the sash and door factory. He stopped and felt the sparks coming across to his face. The engine slowed down after it went by the Turner factory. “I just buttoned up my suit. I didn't want to burn it up. This was a lone engine. There were no cars attached to this engine.”

The railroad records show that there was an engine that went by the Turner property about that time the day of the fire, but with a box car. Some time between 3:15 and 3:25 in the afternoon of the same day engine No. 715 with thirty-eight empty box cars went by the sash and door factory at about 8 miles an hour. The evidence shows that the track is on level ground and that the power necessary to pull that train of thirty-eight empty box cars was only one-third of the capacity of that particular engine, No. 718. It is conceded that both engines were equipped with all modern equipment for the prevention of fire, but respondents claim that the evidence shows that even with the best modern equipment engines do emit sparks and cinders. What the evidence shows is that ashes and cinders will go through the flues, but must go through the netting before they can escape from the stack and cannot go through the netting until broken up.

The case was tried with great care, each side apparently trying to get the whole truth from the witnesses. The testimony was brought out by leading questions from both sides without objection. The witnesses mostly lived in the neighborhood of the sash and door factory. They arrived, of course, at different times. Some of them early and some of them later. Everything was very dry at the time. There was no snow and there had not been any rain. A great deal of the lumber on hand was kiln-dried. The buildings were mostly frame and burned very rapidly. Nobody saw the fire start. About a quarter of an hour after the last train went by, smoke was seen.

The case was tried twice in the district court. On the first trial the jury disagreed. On the second trial the only question at issue was the question of the origin of the fire. Counsel for the defendant conceded that witness James Turner, secretary and treasurer of James Turner & Sons, was qualified to testify as to the value of the property consumed. He testified at length specifically describing the property and that the aggregate value of all the property consumed was $33,294.45. He was cross-examined at great length about matters relating to the fire, but was not asked a single question on cross-examination as to the value of the property and there was no evidence offered by the defendants on the question of damages or the value of the property.

The court instructed the jury, “If your verdict should be for the plaintiffs, you will then assess their damages. Evidence has been introduced by the plaintiffs tending to show that the total loss or damages suffered by the plaintiffs as a result of the fire which destroyed the buildings and other property of James Turner & Sons sash and door factory was of the sum of $32,585.02. * * * The defendants have introduced no evidence as to the value of the plaintiff's property destroyed by the said fire. * * * The court instructs the jury that you should, after considering all of the evidence in the case, fix the fair and just amount of damages suffered by the plaintiffs because of said fire, but not to exceed the sum of $32,585.02, and in your discretion you may or may not, as you see fit, allow interest on the damages awarded at 4% per annum from April 17, 1932. In determining the damages suffered by the plaintiffs you should allow the full value, as shown by the evidence, at the time of the fire of all the property of said James Turner & Sons destroyed by said fire. * * *”

The jury, after being out about twenty-eight hours, returned a verdict for the plaintiff for $10,000.

A motion for a new trial was made upon the following grounds, to wit:

“1. Insufficiency of the evidence to justify the verdict and the judgment entered thereon and that the same are against the law.

2. That the evidence in the case is of such a character that the...