40 Minn. 60 | Minn. | 1889
The ■ plaintiff in this case seeks to recover the value of certain stacks of hay which he alleges were destroyed by a fire caused by the negligent manner of operating one of defendant’s locomotives, on the 9th day of October, 3 885. The testimony as to the origin of the fire which burned the hay is fully as satisfactory as it was in Karsen v. Mil. & St. Paul Ry. Co., 29 Minn. 12, (11 N. W.
The plaintiff’s omission to plough around his stacks of hay, and thus protect them from running fires, does not constitute negligence per se. Whether such a failure amounts, to negligence in any case, depends upon circumstances, and is a question of fact for a jury. Karsen v. Mil. & St. Paul Ry. Co., supra. This disposes of defendant’s fourth assignment of error, that the verdict was not justified by the evidence.
The first, second, and third assignments, that the court erred in excluding certain testimony, may properly be considered together, and we see no reason for the appellant to complain of the rulings, many of which were, improperly, in its favor. The origin of the fire having been traced to defendant’s locomotive, attached to a freight train going east about noon, a- prima facie case of negligence under the statute (Gen. St. 1878, c. 34, § 60) was made out. The burden then rested upon the defendant to overcome the presumption of negligence, and establish by competent testimony the proper construction, good condition, and skilful management of the locomotive involved, — the one attached to the freight train, and which must have set the fire, if reliance is placed upon any part of .the testimony relating to its cause. To identify this locomotive as one numbered 135, Moore, a section foreman, testified that his “report” showed it to be 135, run by engineer Chadwick. The report spoken of was probably one made to his superiors concerning the fire, but, as the witness had previously stated that he did not know the number of the locomotive, nor who was in charge, it is obvious that his “report” was based upon hearsay only. Without further effort to show what engine was responsible for the fire, the defendant proceeded in
In conclusion, we suggest that, in addition'to proving the good condition of the locomotive, it devolved upon appellant to show a careful and skilful handling by the engineer in charge, in order to rebut the statutory presumption of negligence. No attempt was made to do this.
Order affirmed.