Union Pac. R. Co. v. Fickenscher

• Decision Date: 05 October 1905
• Citation: 74 Neb. 497,105 N.W. 39
• Parties: UNION PAC. R. CO. v. FICKENSCHER.
• Court: Nebraska Supreme Court

74 Neb. 497

105 N.W. 39

UNION PAC. R. CO.

v.FICKENSCHER.

Supreme Court of Nebraska.

Oct. 5, 1905.

Syllabus by the Court.

A verdict will not be set aside on the ground of want of sufficient evidence to support it, unless the want is so great as to show that the verdict is manifestly wrong. Sycamore v. Grundrad, 20 N. W. 832, 16 Neb. 529.

Evidence examined, and held to support the verdict.

Commissioners' Opinion. Department No. 1. Error to District Court, Dawson County; Sullivan, Judge.

Action by Henry Fickenscher against the Union Pacific Railroad Company. There was judgment for plaintiff, and defendant brings error. Affirmed.John Baldwin and Edson Rich, for plaintiff in error.

Warrington & Stewart and H. M. Sinclair, for defendant in error.

LETTON, C.

This action was brought by Henry Fickenscher against the Union Pacific Railway Company to recover damages sustained by him in a prairie fire which he alleges was set out through the negligence of the defendant. Upon the trial a judgment was rendered for the plaintiff, from which the defendant prosecutes error.

A detailed statement of the facts with reference to the fire, together with a map of the locality, is to be found in Union Pac. Ry. Co. v. Fickenscher, 100 N. W. 207. The plaintiff in this case is the brother of John Fickenscher, and, with his father, Ulrich Fickenscher, was in company with John at the time they were all three burned in the prairie fire. In the petition in error the defendant assigns 55 different grounds, but upon the argument and in the brief a comparatively small number of errors were considered. The assignment of error upon which the most stress has been laid is that the evidence does not support the verdict, and it is urged that the evidence in this case does not differ materially from that in the case of John Fickenscher against the railroad company for injuries resulting from the same fire, and that, since that case was reversed upon the ground that the verdict was not supported by sufficient evidence, this case likewise should be reversed for the same reason. If no additional evidence has been produced by the plaintiff in this case to sustain his contention that the fire which burned him was the fire which started from the defendant's right of way, then, under the rule in the former case, he cannot recover.

The point upon which the testimony in the case of John Fickenscher seemed to this court to be insufficient was as to the identity of the fire which burned him with that which started at the railroad. The theory of the plaintiff is that, when the railroad fire struck the sand hills, it spread off over them and drifted northwest before the wind; that one branch of the fire went a little west of north and kept to the east of the road running between Fosburg's and Ditto's, and that another branch of the fire crept to the westward, south of Ditto's, and ran several miles north before the change of wind occurred, when it was blown back across the unburned grass between the two fires to the place where the injury occurred. The defendant's theory is that the fire never got any farther west than the point where the plaintiff and his neighbors were fighting it on the line east of Ditto's, and that the fire which burned the plaintiff was an entirely different one which had been burning for some time many miles northwest of the place where the plaintiff was injured, and which was blown down from the northwest with great rapidity when the wind changed early on Monday morning. The surface of the country lying to the north and northwest from where the fire started is made up of sand hills from 10 to 100 feet in height. These sand hills were at this time sparsely covered with dry grass; in the depressions between the hills the growth being heavier.

From the physical configuration of the country is was difficult to see where any fire was exactly situated, except when it burned upon the hills, or when the observer stood upon one of the numerous knolls or sand hills. South of these hills lies the Platte Valley, which consists of level bottom lands where there is nothing to obstruct the sight, and over which it was possible for observers south of the sand hills at some distance to see the relative location of the fire east or west of a given line. In the Fickenscher Case the plaintiff relied upon the testimony of witnesses residing south of Brady Island, who say they saw the fire gradually spread west until late in the evening, when it appeared to be north of George's pasture, which adjoins Brady Island on the east. At the trial it was admitted by agreement of the parties that that portion of the fire which came up from west of Vroman, and extended north from Ditto's house to the house of Fosburg's, east of the road as shown upon the map, was out by 11 o'clock of Sunday evening, April 16, 1899; and the plaintiff makes no claim by reason of that portion of the branch of the fire just described east of the road running from Ditto's to Fosburg's. This disposes of one line of fire as far south as Ditto's house, the fire that the plaintiff and his associates had been fighting, and leaves the fire that burned him to be accounted for, either as being the fire that had been burning on Sunday afternon far to the northwest, or as a branch of the railroad fire which had crept to the westward south of Ditto's, thence run northward at least four or five miles, and was driven back when the wind changed.

There were over 60 witnesses examined in the case, who had observed these fires from nearly every point of the compass. Part of the strongest evidence in behalf of the plaintiff came from the mouths of defendant's witnesses, the plaintiff having made the effort to introduce this testimony taken by the defendant at the opening of his case; but, upon the objection of the defendant that he expected to produce it, the defendant's objection was sustained, and it only came into the case as being offered upon the defendant. One McIntyre, a witness for the defendant, testified that from about 12 o'clock until 2 o'clock on Sunday night he was fighting a fire near the west line of section 8, about one-half mile west of Ditto's house; that this was a side fire, and that the head fire had run six or eight miles to the north, as well as he could judge. It was agreed, however, by the parties that, if he were present upon the stand, he would testify that, when he spoke of the head fire having gone on, he meant the fire that had gone east of Fosburg's. On cross-examination he testified that at 2 o'clock on Monday morning, when he left this place, a fire was burning to the northwest, which he supposed was the head fire of that which he was fighting. McIntyre is an employé of the defendant, who lives at Brady Island. Unless he was mistaken as to the locality, his evidence shows that a fire was burning about one-half mile south and west of Ditto's at that time, and one was burning six or eight miles northwest after the line of fire the plaintiff had been fighting was extinguished as far south as Ditto's. Two witnesses, Larson and Jacobson, testify that on Sunday afternoon and evening they had been fighting fire to the south and east of where McIntyre was; that the fire which they were fighting had burned along on the north side of sections 16 and 17, which would be in the direction of the point where McIntyre says he was; and that about 12 or 1 at night they saw a big fire up near them, apparently north and west of near Ditto's. Jacobson further testifies that, when they were back firing on Larson's pasture, they followed the south line of the fire to the west edge of the pasture, which would be about south of Ditto's house, according to the map, and the head fire had gone northwest when they got to the west line of the pasture. The testimony of one Scott, a witness for the defendant, who lives south of the Platte river, is to the effect that about 9 or 10 o'clock on Sunday night he saw a fire to the north of him--it seemed to be just above Mr. Beatty's place, which was just north of where Scott lived, and a mile and a half west of Ditto's. This testimony is corroborated by the testimony of Pearl Scott, his daughter, who testified that she could see the flames of this fire, and that it seemed to be north and west of Beatty's. John Eilander, who lives a mile east of the place of injury, testified that at half past 2 o'clock on Monday morning he could see a fire--“a little flame or red”--three or four miles northwest of his house. One Peterson, who lives northwest of Ditto's, says that he saw a fire by Ditto's house on Sunday afternoon, but did not see it after it got...