198 Iowa 785 | Iowa | 1924
— Though the testimony of plaintiff’s witnesses varies somewhat as to the value of the property and plaintiff’s loss, the evidence fairly shows that her damages were approximately $7,000. The defendant introduced no evidence on the question as to the amount of damage. There is no basis whatever, under the evidence, for a verdict of $100. This is conceded by counsel for appellee; but they claim that, under the record, plaintiff was not entitled to recover at all, and that the verdict of the jury is equivalent to such a finding, and that the verdict for $100 was simply to carry the costs. The trial court, in overruling plaintiff’s motion, held that plaintiff was not entitled to recover in any sum, and refused to grant a new trial on her application. In this we concur. Appellee was entitled to a directed verdict, or a new trial, on that ground. He has not asked a new trial. There could be no ground for claiming that the jury was prejudiced against the woman, or had any sympathy or bias in favor of the railroad. Appellant would be entitled to a reversal and a new .trial if she has shown any negligence on the part of the appellee, and that she is entitled to recover in any sum. After a careful examination of the record, we reach the conclusion, as stated, that she did not so show.
A reference to the high points in the testimony will be
Plaintiff’s house, in the town of Eldon, was located on a bluff 20 feet high, and it is 18 feet from the foundation to the eaves — a two-story building. The railroad track is at the foot of the bluff. The railroad track was south and in the rear of the house. There were no buildings north of the house, except across the street, and no buildings west or south. There was a house on the east within about 30 feet of plaintiff’s house, occupied by one Lyon. The south line of the house was about 118 feet from the center of the main track and about 60 to 70 feet from the switch track. The Keokuk division, and the Kansas City line cross on the east side of the Des Moines Kiver, adjacent to the passenger depot. There is a transfer track from the Missouri division main line to the Keokuk main line at the north side of the depot. The north switch of the transfer track is 1,785 feet from plaintiff’s property. The switch track back of plaintiff’s property is 5 or 6 feet north of the main-line track. The fire occurred some time between 9 and 11 o’clock in the forenoon of January 26, 1919. The house was burned to the ground. There was a slight breeze from the southwest that morning. The temperature was about 27 degrees above zero. There had been a large amount of snow for a period of about a month prior to the time of the fire, and the weather had been very cold during the larger portion of that time. The house was heated by a hot-air furnace, and was wired with electricity for lighting. The wires came into the house near the eaves on the east side. The chimney was located in the east central portion of the roof. According to plaintiff’s testimony, there was a train on the railroad track in the rear of plaintiff’s house on the morning of the fire, before it was discovered. As we understand it, this is denied by appellee. Plaintiff’s evidence is to the effect that the engine was making a loud puffing and grinding noise. There is evi
The origin of fires is frequently shrouded in mystery. It is possible, perhaps, that this fire was started by a spark from defendant’s engine. The burden of proof was upon plaintiff to so show. Section 2056, Code, 1897; Dingmon v. Chicago c& N. W. R. Co., 194 Iowa 721, 724. We are of opinion that she did not so show. Dingmon v. Chicago & N. W. R. Co., supra, at 723, 725. This being so, the refusal of the trial court to give requested instruction No. 4, as to the measure of damages, is not now material. Without discussing the matter, we think that the trial court, in instructions given, covered the point by saying that plaintiff was entitled to recover, if at all, the full amount of her damages.
The judgment is affirmed. — Affirmed.