21 Minn. 60 | Minn. | 1874
The complaint alleges that “ the defendant, a corporation duly organized under the laws of this state, were the owners of a certain railroad,” etc. The answer is as follows : ‘ ‘ The defendant above named answers the complaint in this action as follows : First, defendant admits that at the time mentioned in said complaint, they were the owners of a certain railroad, etc., as stated in folio 1 of the complaint. Second, defendant denies each and every other allegation in said complaint contained,” etc.
The admission of ownership of the railroad, “ as stated in folio 1 of the complaint,” might, perhaps, not unreason.ably be held to be an express admission of ownership by defendant as a corporation, for such is in effect the allegation in the complaint. Moreover, the name by which the defendant is sued, and by which it answers, implies that it is a corporation, ( Woolf v. City Steamboat Co., 7 C. B. 103,) and the language of the complaint and answer, in which both the singular and plural number are employed in referring to the defendant, implies that the defendant is not ■•an individual, but is an aggregation or association of individuals under a common name. Such an association could not, unless incorporated, be the owner of a railway, which -is real estate. German Land Association v. Scholler, 10 Minn. 331. The admission by the defendant of its exist■ence under the name by which it is impleaded, and of its ownership of the railroad in that name, and as an association,
One of the plaintiff’s witnesses testified that the fire broke out on the defendant’s land, about fifteen feet from the end ■of the ties, immediately after the passing of the train. He found a few coals at that place. There was -no wood, but only grass, where these coals were found. A higli wind was blowing, and the season was dry. Other witnesses testified to the breaking out of other fires along the line of the defendant’s road immediately after the passing of this train. Another witness, familiar with the operation of locomotives, testified that “ all engines will scatter coals at times. If the forward damper is open, and the hind one shut, they will not scatter coals.” In the absence of direct evidence as to the •cause of the fire, the jury would have a right to infer from these circumstances that the fire was kindled by the coals found by the witness, and that these coals came from the fire-box of the engine. The high wind would account for their falling several feet to the leeward of the track, instead of falling between the rails. The suggestion of the defendant’s counsel, that the fire might have caught from a lighted cigar thrown from the train, is less ¡mobable than the cause alleged by the plaintiff, and is entirely hypothetical. There was, therefore, evidence to go to the jury that the fire came from the engine. Smith v. London & S. W. R. Co., L. R. 6 C. P. 14.
It has been held, (although upon this point the cases are not in harmony,) that the fact of fire escaping from an engine, is, in itself, prima facie evidence of negligence. And there is certainly good sense in the rule that proof of proper construction and management of the engine should in all cases be required of the company, which possesses full
Still, the circumstance that this particular train was followed by a series of fires as it passed along, taken in connection with the finding of the coals at the point where this-fire broke out, had certainly some tendency to prove, not only that this fire was set by the engine, but also that the engine was defective in construction, or negligently managed. Granting that a single fire may be set by an engine well constructed, in perfect order, and carefully and skilfully operated, yet, when several fires are kindled in rapid succession by a single engine, a presumption of negligence is raised* which it is incumbent on the company to repel by proof that such engine was supplied with the best appliances for. preventing the escape of fire, and was carefully operated by skilful men. In this case, the same circumstances which showed the fire to have been kindled by the engine, also-tended to prove the negligence alleged, and it was therefore unnecessary, even within the rule laid down in the cases which hold that the escape of fire is not, in itself, evidence of negligence, for the plaintiff to show affirmatively, by direct evidence, any defect in the construction, or negligence in the management of the engine. Sheldon v. Hudson River R. Co., 14 N. Y. 218 ; Field v. N.Y. Cent. R. Co., 32 N. Y. 339 ; Le Barron v. East Boston Ferry Co., 11 Allen, 312.
It follows that the motion to dismiss the action was properly denied, and that there was no error in the qualification
The second instruction asked by the defendant was properly refused. The conduct, not merely the character or capacity, of the engineer and fireman, was in question. It was not enough that they operated the engine in the customary manner. They must also operate it in a careful manner, whether the use of proper care be customary or not. Koester v. City of Ottumwa, 34 Iowa, 41.
The judgment of the district court is affirmed.
