| Minn. | Jun 9, 1890
This is an action to recover for property destroyed by fire set from one of the defendant’s locomotives. The plaintiff recovered a verdict, and a new trial was refused by the district court. The principal question presented on this appeal is whether the special finding of the jury, that this engine was not properly constructed and equipped so as to prevent the escape of fire, was sustained by the evidence. The defendant’s point, that this was not an issue in the case, is not sustained. We deem it to have been fairly within the allegations of the complaint; and, more than that, it appears from the case to have been treated by the parties at the trial as a matter in issue. Upon this point, it must be conceded that a strong case was made on the part of the defendant, and that, if it had not been met by any opposing proof bearing upon the question, the statutory presumption of negligence would have yielded to the case thus made. We need not refer to the defendant’s evidence, except to say that it went to show that the engine was in, good condition; that the wire netting on the smoke-stack was like a piece of netting which was exhibited to the jury, and the meshes of which, a witness stated, were three-sixteenths of an inch across; and that this was the standard netting commonly used for such purposes. The ash-pan was provided with netting also, in addition to the ordinary dampers. The fuel used was soft coal. The fire started at a point 86 feet from the track. It would seem, from
Order affirmed.