62 Minn. 243 | Minn. | 1895
This was an action for damages caused by fire scattered or thrown from one of defendant’s engines. The negligence alleged was that the locomotive was in a defective condition, as well as negligently operated.
The defendant made a motion for continuance on the ground that it was not prepared for trial because of the absence of material witnesses, consisting of the inspectors whose duty it was to inspect engines, and of the engineer, fireman, and other employés who were operating the train, but whose names or residence it did not then know and had not had time to ascertain. The plaintiff admitted that such witnesses, if present, would testify as follows, as stated in the affidavit for continuance, to wit: “That each of the persons whose duty it was to inspect said locomotive that was attached to the train that has been testified to by the witnesses as having started the fire duly inspected said locomotive; and that immediately before and immediately after the time when said fire is claimed to have been started, the screens, smokestack, fireboxes, and dampers of said locomotive were in good condition; and that such screens, smokestack, fireboxes, and dampers, and all other ap
The plaintiff proved that the fire which caused the damage was scattered or thrown from the locomotive of one of defendant’s freight trains and rested. The defendant thereupon introduced the above admission as to what the absent witnesses would testify to if present, and also rested. The only circumstances connected with the setting of the fire which appeared from plaintiff’s evidence that had any bearing (other than the statutory presumption) upon the question of defendant’s negligence were, that the fire started in the grass “on the outside of the ditch” along the railroad; that there was a “middling hard” or “pretty hard” wind blowing; also, that there had been no recent rains, and the grass was dry and burned readily. There was also evidence tending to show that on this same trip the engine started other fires in the grass in that vicinity. There was a verdict for plaintiff.
Defendant’s contention is that the evidence fully rebutted the statutory presumption of negligence arising from the fact that the fire was scattered or thrown by the engine, and therefore the verdict was not justified by the evidence. The same point is raised by an exception to the refusal of the court to direct a verdict for the defendant.
There is no doubt of the correctness of the propositions, urged by defendant’s counsel, that the statutory presumption is a disputable one of fact, which may be rebutted by showing that the defendant did use due care and was not negligent; that the effect of the stat
In this case there was no evidence of any exceptional circumstances in the operation of the train, such as that it was on an up grade or that the engine had to “labor hard.” Bo far as appears, it was an ordinary freight train, running under ordinary circumstances, along a level track. While it does not appear how wide the ditch was, or how far it was from the track, yet the fair inference from the evidence is that the spark or cinder which started this fire was carried in a live condition quite a distance. The fact that the engine was repeatedly emitting live sparks or cinders large enough to start other fires is a significant circumstance. To overcome the statutory presumption supported by this affirmative evidence, there was nothing but the admitted testimony of defendant’s unnamed employés as to the condition and operation of the engine. This evidence must, of course, be received and treated precisely the same as if the witnesses had been produced in court, and had testified, in the exact language contained in defendant’s affi
Judgment affirmed.