62 Minn. 207 | Minn. | 1895
Defendant’s engine, drawing its train of cars, passed along over its track. Immediately' after it passed, a pile of old ties on the right of way, beside the track, were found to be on fire. The fire spread to the adjoining land, and after smouldering in a dry, boggy, or marshy slough for a few days, broke out afresh, extended to the plaintiff’s farm, and burned over a part of the same, causing him damages, to recover which this action is brought.
On the trial the jury returned a general verdict for the plaintiff, and also answered the five questions submitted to .them as follows:
The only grounds urged for reversal are that the evidence does not sustain the second and third special findings of the jury. It is conceded that the evidence is sufficient to sustain the first finding, —that the fire was set originally by sparks from this engine. G. S. 1894, § 2700, provides that the fact of fire being so scattered or thrown shall be held to be prima facie evidence of negligence on the part of the railroad company. Defendant claims that on the trial it fully, and in all respects, rebutted this presumption, and that the evidence conclusively shows that it was not guilty of negligence in permitting such sparks to escape. We cannot agree with appellant.
It is true that the engineer who ran the engine, his fireman, the foreman of the shops, the boiler washer, and the boiler maker all testify to the perfect condition of the engine. But there are some things which cropped out in the evidence which deprives it of any such conclusive character. Leonard, the foreman of the shops, testified that the engine was reported by the engineer as throwing fire. He further testified: “I was notified to examine her, and found nothing the matter with her, and she was reported again, and I reported the same thing; and Mr. Ellis, not being satisfied, ordered the engine to lay in a few days, and examined the front end himself, so as to be sure, and then he ordered to take the old netting out and put in new netting.” The witness testified that he did so, and that, “although the netting was put in new on Mr. Ellis’ orders, there was nothing the matter with it.” This was the 2d of August, and the fire in question was started on the 13th of Sep
Order affirmed.