U.S. v. Denver & R. G. W. R. Co.
| Decision Date | 11 January 1977 |
| Docket Number | No. 75-1701,75-1701 |
| Citation | 547 F.2d 1101 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. The DENVER AND RIO GRANDE WESTERN RAILROAD COMPANY, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Carl Strass, Dept. of Justice, Washington, D. C. (Peter R. Taft, Asst. Atty. Gen., Washington, D. C., Glen R. Goodsell, Dept. of Justice, Washington, D. C., Ramon M. Child, U. S. Atty., Salt Lake City, Utah, on the brief), for plaintiff-appellee.
Alan L. Sullivan, Salt Lake City, Utah (Van Cott, Bagley, Cornwall & McCarthy, Salt Lake City, Utah, on the briefs), for defendant-appellant.
Before SETH and HOLLOWAY, Circuit Judges, and STANLEY, Senior District Judge. *
This is an appeal from a judgment rendered in favor of the United States in an action to recover for fire damage to fifty-five acres of government land adjoining the appellant's right-of-way in Price Canyon, Utah. The case was tried to the court without a jury.
The trial court found that the appellant (the railroad) negligently allowed inflammable materials to accumulate along its right-of-way thereby creating a dangerous condition; that the fire was ignited by a yellow fusee at a point near a switchbox on the railroad track; and that the railroad failed to take reasonable and necessary measures to extinguish the fire and allowed it to spread from the right-of-way onto the adjoining land owned by the United States and supervised by the Bureau of Land Management. The court, although there was no direct testimony that the railroad company currently used yellow fusees, determined that the evidence, taken as a whole, established that "the railroad's negligence ignited the fire".
The appellant contends that the evidence does not support the findings of fact that the fire was ignited by the railroad or that it had allowed inflammable materials to accumulate along its right-of-way. The railroad also claims that the trial court erred in concluding, "that even absent a finding of the Railroad's responsibility for starting the fire, the Railroad was liable for damages from the fire by reason of its failure to maintain its right-of-way in a fire-safe condition"; and that it erred in its award of damages.
There was ample evidence to support the findings that the fire was started by a fusee along the railroad's right-of-way and that it spread to the government land, causing damage. While there was no direct evidence linking the actions of the railroad or its employees to the particular fusee which initiated the blaze, as the trial judge noted in his Memorandum Opinion, a finder of fact "deals only with probability, and that a greater or less probability, leading, on the whole, to a satisfactory conclusion, is all that can reasonably be required to establish controverted facts." 30 Am.Jur. Evidence § 1164 (1967). As has elsewhere been stated, ". . . where fairminded men may draw different inferences from the evidence, the dispute may be resolved in a civil case by choosing what seems to be the most reasonable inference, and only where there is a complete absence of probative evidence to support the conclusion reached does a reversible error appear." 4 Jones on Evidence, Gard's 6th Ed. 305.
There was competent expert evidence that the fire was caused by the ignition of the yellow fusee; that the burnt-out fusee was found near a switchbox on the railroad's right-of-way; that it was the practice of brakemen to throw fusees along the track when a train was stopped or was switching; that the railroad, while it had not used yellow fusees on its main line for many years, did use them in its yards in foggy weather; and that no one else in the area used yellow fusees. There was other evidence, including photographs and slides, that inflammable materials described as litter, sticks, twigs, and dry grass, had accumulated on the right-of-way near the point where the burnt-out fusee was found. The trial judge reasoned from these facts that other possible causes of the fire were eliminated, leaving the railroad as the agency responsible for the fire.
Factual findings of the district court are not lightly to be set aside and where the evidence supports a conclusion either way the choice between two permissible views of the weight of the evidence is not "clearly erroneous" as the term is used in Rule 52(a), Fed.R.Civ.P. United States v. Yellow Cab Co., 338 U.S. 338, 70 S.Ct. 177, 94 L.Ed. 150 (1949). The appellant has the burden to clearly demonstrate error in the findings and the burden is especially great where, as here, the findings are based primarily upon oral testimony so that the trial court has had the opportunity to observe the demeanor of the witnesses, to judge their credibility, and to weigh their testimony. Snodgrass v. Nelson, 503 F.2d 94 (8th Cir. 1974). The evidence viewed in the light most favorable to the appellee traced the course of the fire in unbroken sequence to the fusee. The facts were sufficient to give rise to the permissible inference that the fusee was lighted and discarded by the railroad's employees.
The appellant complains of the inclusion in the district court's Memorandum Opinion of the statement "the rule which imposes liability on an owner of land by reason of his negligence in failing to keep his premises safe from the accumulation of inflammable material thereon is enough to establish liability on the railroad under the facts established by the evidence presented at trial". The remainder of the paragraph in which the quoted statement appears is as follows: "This court, however, also believes that the evidence established that the railroad's agents or employees were negligent in igniting the fire." Elsewhere in the Memorandum Opinion the court said, and "The court concludes, based on the evidence presented at the trial, that the railroad's negligence ignited the fire." It is clear, when the Memorandum Opinion is read in its entirety, that the district court found that the railroad, by allowing the accumulation of combustible debris on its right-of-way, furnished a condition by which the direct cause, the ignition of the debris, was made possible. Competent evidence supports the finding. It is settled law that when two causes, one furnishing the condition giving rise to the occasion by which an injury is made possible, and the other a direct cause of the injury, the latter will be regarded as responsible for the result. 86 C.J.S. Torts § 30, quoted in United States v. DeVane, 306 F.2d 182 (5th Cir. 1962).
The appellant cites cases in which railroad companies were not held...
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