Union Pacific Railroad Company v. Fickenscher

• Decision Date: 09 June 1904
• Docket Number: 11,939
• Citation: 100 N.W. 207,72 Neb. 187
• Parties: UNION PACIFIC RAILROAD COMPANY v. JOHN FICKENSCHER
• Court: Nebraska Supreme Court

100 N.W. 207

72 Neb. 187

UNION PACIFIC RAILROAD COMPANY v. JOHN FICKENSCHER

No. 11,939

Supreme Court of Nebraska

June 9, 1904

ERROR to the district court for Dawson county: HOMER M. SULLIVAN JUDGE. Reversed.

Reversed and remanded.

John N Baldwin, Edson Rich, E. A. Cook and John M. Ellingsworth, for plaintiff in error.

Warrington & Stewart, George W. Thomas and H. M. Sinclair, contra.

DAY, C HASTINGS, C., DUFFIE, C. concurring.

OPINION

DAY, C.

This action was brought by John Fickenscher in the district court for Dawson county against the Union Pacific Railroad Company to recover damages sustained by him on account of having been burned in a prairie fire, which he alleged in his petition was started through the negligence of the railroad company. Upon the trial the plaintiff recovered a judgment for $ 1,175, to review which, the defendant has brought error to this court.

It was contended upon the part of the defendant that the fire which it was alleged to have negligently set out never reached the point where the injury occurred, and that the fire which burned the plaintiff, was a fire which originated from unknown causes, and was driven down from the northwest by a heavy gale which was blowing from that direction at the time of the injury. The petition in error contains 63 assignments of error, but, in the view we have taken of the evidence, it seems unnecessary to consider any of the assignments of error except those relating to the sufficiency of the evidence to sustain the verdict and judgment. For the purpose of elucidating the opinion, we have attached a map showing the distances and relative positions of places mentioned in the opinion:

[SEE MAP IN ORIGINAL]

The record shows that about noon on April 16, 1899, a fire was discovered along defendant's right of way soon after a train on defendant's railroad had passed, going west. The fire started in section 27, township 12, range 26, near the town of Vroman, and during the afternoon and evening burned in a northwesterly direction and by dark it had reached Fosberg's place some seven miles north and a mile and a half west of the point where it started. During the afternoon and evening a light wind was blowing slightly west of north. The country over which the fire spread, and, in fact, all of the country in that vicinity north of the railroad, is a rough sand-hill country, sparsely covered with grass. The testimony shows that about dark on the evening of the 16th, the fire had reached the south line of land owned by one Fosberg, to wit, the southwest 1/4 of section 22, township 13, range 26, and that the neighbors living to the north and northwest of his place came to his house to assist in fighting the fire, and among those who came were the plaintiff, his father and brother. These parties started in at Fosberg's and plowed a furrow and back-fired along the east side of a road running from Fosberg's in a southerly direction to one Ditto, residing on the northeast 1/4 of section 8, township 12, range 26. The testimony of all the parties is clear that this fire did not spread west of the road above described, or north of the south line of Fosberg's, except as indicated by the line representing the outline of the fire and not material to this discussion, as it is conceded that this branch of the fire did not reach the point where the injury occurred. Fosberg and his neighbors who were fighting the fire turned out of the road a short distance north of the Ditto place and changed their course to a southeasterly direction, and continued to fight the fire, keeping upon the west line of it until they reached a point somewhere near the center of section 16, in a pasture known as Larson's pasture. At about three o'clock in the morning several members of the party made an observation from the top of one of the hills near the center of the section, and all of them say that the reflection of fire could be seen to the west and southwest of them, but none of them were able to place the distance of the fire with any accuracy. About that time the wind began to change, and in a very short time a heavy wind was blowing from the northwest. The Fosberg party then abandoned the fight and started north along the road leading from Ditto's to Fosberg's. The testimony is not clear as to the exact time they reached Fosberg's, but it was somewhere near four o'clock; all agree, however, that a terrific gale was blowing from the northwest. The plaintiff, his father and brother, left Fosberg's at his southwest corner and continued northward toward their home in section 4, township 13, range 26. At that time the reflection of a fire to the northwest could be plainly seen, and some of the party urged the plaintiff not to attempt to go forward. After going some sixty rods north of Fosberg's corner, a fire from the northwest swept down upon them, and the plaintiff, his father and brother, were more or less burned and injured. The testimony also shows that parties who were interested in Larson's pasture were also fighting the fire during the afternoon and evening from a point about the middle of section 16 and along the southeast line thereof toward the railroad track, and that the fire did not pass west of the east line of sections 16, 21 and 28. There is some testimony, however, that in the middle of the afternoon a line of the fire had spread through the hills along the north side of section 16, and that it had spread into section 17, but the testimony shows that this fire was put out. The neighbors who live immediately to the west of the Ditto-Fosberg road are positive that the fire which was burning in the afternoon southeast of Pettit's was put out.

The theory of the plaintiff was that the fire had crept around and through the sand hills along the north side of sections 16 and 17, and thence through the north side of Beatty's pasture until it reached a...