45 Minn. 17 | Minn. | 1890
In this action, which was brought to recover for standing timber alleged to have been destroyed by a fire set by one of appellant’s locomotives, the respondent, plaintiff, had a verdict. The jury also found, specially, that the fire originated on appellant’s right of way from coals or sparks scattered by the locomotive in question; that the locomotive was equipped with the latest and most approved appliances for preventing the escape of fire; and that it was in perfect condition at the time. It was also found, specially, that the engineer in charge and his fireman were not skilful and competent men; that . they did not manage and operate the locomotive carefully and skilfully; and further that-appellant did not exercise such care in the construction, maintenance, and use of the locomotive on this occasion as a man of ordinary prudence would have exercised under like circumstances. The appeal is from an order refusing a new trial. - It is the contention of appellant’s counsel that the verdict was not justified by the evidence, and the court erred when instructing the jury as to the measure of damages, should it find plaintiff entitled .to recover at all. One or two of the special questions submitted to the jury were so
On the day of the fire, a very high wind prevailed, and everything was in a dry condition. This is admitted by all of the witnesses. On defendant’s right of way, about the place where the fire is said to have originated, the grass had been cut down, but not removed. It lay on the ground in swaths, and had become exceedingly combustible. Not far from 11 o’clock in the forenoon an extra train ran over the road in an easterly direction. About 12, the regular freight, drawn by the locomotive in question, went westwardly. None of plaintiff’s witnesses were able to say that they observed the fire at ^he time it started, but several testified that they saw it immediately after the freight train passed, when it had just commenced to spread, and before the volume of smoke which came from it became dense or great. One of these witnesses, working near by, purposely looked along the railway for fire soon after the extra passed, just prior to the arrival of the freight train, and saw none, nor did he see any persons about the right of way or in the neighborhood. He then went to dinner, the freight train passed, and within 20 minutes he saw the fire, then running rapidly, and from which quite a body of smoke was coming. On the trial, it was defendant’s contention that the fire which destroyed plaintiff’s trees was raging before the freight train reached the vicinity, and consequently it could not have originated from sparks or coals dropped from the locomotive of that train. Some of the trainmen testified that they saw a fire, a small one, they said, but off the right of way, just before coming to the place; while several other witnesses testified that, from a distance, they saw the smoke of a fire prior to the arrival of the train near
As before stated, the defendant’s locomotive was found by the jury to be properly equipped as to sparks and coals, and to be in good condition, while the jury declared by the third special finding, as we construe it, that, on this occasion, the engineer and fireman did not operate and manage their locomotive in a careful and skilful manner. It was at a very dry season of the year, the wind was blowing a gale, and at this place the right of way was covered with dead leaves and brush, dry grass, and other materials which would readily ignite. We may assume that both engineer and fireman were careful ordinarily, and competent usually, although the engineer avowed his ignorance as to what caused the setting of fires by locomotives, and also expressed the opinion that there was no more danger of setting fire by a careless than by a careful handling of the engine. But he stated that upon this occasion he operated and managed his engine as
The rule as to the measure of damages was correctly stated. The premises injured consisted of 30' acres of young growing trees, designed for the wood and timber market as they grew and could be profitably cut, and these trees were destroyed. The measure of damages was, as stated by the court in its charge, the difference between the value of the land immediately before and just after the im jury. Their value as standing trees, that is, the value they added to the land, is thus determined. Carner v. Chicago, St. Paul, M. & O. Ry. Co., 43 Minn. 375, (45 N. W. Rep. 713.) See, also, Argotsinger v. Vines, 82 N. Y. 308; 3 Suth. Dam. 373, 374; and Karst v. St. Paul, S. & T. F. R. Co., 22 Minn. 118. The rule for the ascertainment of damages, contended for by defendant, and stated in Whitbeck v. N. Y. Cent. R. Co., 36 Barb. 644, is not applicable in a case like this.
Order affirmed.