Northern Pac. R. Co. v. Lewis et al., 51 F. 658

Gilbert, Circuit Judge. This case comes on a writ of error to the circuit court of the United States for the district of Montana. The case was tried before a jury, and a judgment rendered against the railroad company for the sum of 821,487.83.

The complaint alleged in substance that on or about August 5, 1890, while the railroad company was using and operating a railroad in Jefferson county, Mont., it failed to keep its right of way and railroad track free from dead grass, weeds, brush, and other combustible material, and used locomotives which threw a large amount of sparks, which fell upon the track and right of way, thereby setting ñre to said dead grass, etc., which fire spread and destroyed 9,400 cords of wood belonging to said George S. Lewis et al.

The railroad company answered, denying the allegations of negligence, and denied that it caused the fire or destroyed any wood belonging to the defendants in error. It further denied that said George S. Lewis ei al. were the owners of the cord wood mentioned in the Complaint, or that they had suffered any damage by any acts of the railroad company; and affirmatively alleged that the loss, if any, occurred through the negligence or carelessness of said defendants in error. There are many assignments of error, some of which are repetitions of substantially the ■same assignment.

The more important of these, and those relied upon upon the argument, will be considered in the order in which they were presented. It is claimed that the court «rod in refusing to instruct the jury that the title or ownership of the wood destroyed was directly in issue, and that, in order to maintain the action, the plaintiffs must show that they were the owners of the wood, or that they had a special property therein. It appeared that the wood was cut upon the public lands of .the United States, without authority or permission from the government.

At the time it was destroyed it was piled upon the public lands near the company’s railroad track. The defendants in error were hauling wood to the pile, and shipping wood to market by the company’s road, at and prior to the time of the lire. The pile was in charge of a foreman, whose duty it was to rake and clear the ground around it for protection against lire. The court below instructed the jury that, as against defendant, the plaintiffs wore the owners of said wood, although the same was cut from lands belonging to the United States.

After a careful consideration of the numerous authorities cited, we are of the opinion that there was no error in giving this instruction, or in refusing to charge as requested by the plaintiff in error. This case comes within the general rule governing the action of trespass for injury to personal property. In such a case possession is prima facie evidence oí’ right, and no stranger may disturb that possession without showing some authority or right from the true owner. The rule applies to the negligent destruction of property, as well as to its wrongful taking and asportation.

The fact that the land on which the wood was cut was government land, and the wood, when cut and sawed, still belonged to the United .States, and the fact that the defendants in error may have been trespassers, can make no difference with the application of the rule. In such a case the defendant is not allowed to justify his own wrong by showing the plaintiffs wrong, and he is not allowed to question the title of plaintiff in possession, unless he connects himself with the true title.

Some cases are cited by plaintiff in error to sustain its contention that recovery cannot be had in favor of a trespasser upon the public lands. It will be observed that the decisions in those cases are expressly based upon the fact that the parties who brought the actions had not the actual possession, and, being trespassers under no claim of right, could not have the constructive possession of the property taken or destroyed. The case of Turley v. Tucker, 6 Mo. 583, was a case where logs had been cut and left upon the government land by the plaintiff.

Subsequently the defendant appropriated the logs to his own use. The plaintiff’s right to recover was denied, not because he had wrongfully cut the logs upon the public lands, but for the reason that he had no actual possession of the logs, and claimed no right to the land upon which they were cut. In the case of Murphy v. Railroad Co., 55 Iowa, 473, 8 N. W. Rep. 320, the plaintiff had cut hay and stacked it upon the uninclosed prairie.. The hay was destroyed by fire through the defendant’s negligence. Plaintiff was not in actual possession of the hay, and made no claim to any right in the land.

It was held he could not recover. In the case of Railway Co. v. Hecht, 38 Ark. 357, it was said by the court that, in an action for the destruction of property, “an allegation of ownership is material;” but that statement, if it amounts to a denial of the doctrine that possession is prima facie evidence of ownership, must be regarded as obiter, for the pleadings in the case expressly admitted the plaintiff’s ownership. The case before the court is distinguishable from these from the fact that the defendants in error were in the actual possession of the wood. The destruction was total.

The amount to be recovered was not the value of the possession, or .anything less than the full value of the property destroyed. Kennedy v. Whitwell, 4 Pick. 466; Ingersoll v. Van Bokkelin, 7 Cow. 670-681; White v. Webb, 15 Conn. 305. It is assigned as error that the court permitted evidence of other fires set at other points on the road and at other times, and by other engines, and instructed the jury to-take into consideration the fires so set in determining the question of negligence. The complaint did not designate the particular engines which were claimed to have caused the fire.

The testimony, however, tended to show that the fire originated from one of two certain locomotives, and that these and other locomotives had set other fires both before and after the injury complained of. This evidence was clearly admissible, under the authority of the decision in the case of Railroad Co. v. Richardson, 91 U.

S. 454, as “tending to prove the possibility, and consequent probability, that some locomotives caused the fire, and as tending to show a negligent habit of the officers and agents of the railroad company,” It is claimed that the court erred in permitting the defendants in error to prove that the right of way and the track at other points than that where the fire occurred were incumbered by dead grass and other combustible material. Comp. St. Mont. p. 830, reads as follows: “Sec. 719.

It shall be the duty oí all railroad corporations or railroad companies operating any railroad within this territory to keep their railroad track, and either side thereof, for a distance on each side of the track or roadbed, so far as it passes through any portion of the territory of Montana, free from dead grass, weeds, or other dangerous or combustible material; and any railroad company or corporation so failing to keep their railroad track free and clear, as above specified, and each side thereof, shall be liable for any damages which may occur from lire emanating from operating the railíoad; and a neglect to comply with the provisions of this

chapter in keeping clear any railroad track, and either side, for a distance equal to the space of ground covered by the grant of the right of way of the railroad company, provided that the same does not exceed one hundred feet on each side of the roadbed, shall he prima facie evidence of nogligenee on the part of any railroad corporation so operating any railroad within the territory of Montana.” Witnesses wore allowed to testify as to the condition of the track “all along up through there, at points opposite the camp.” Wo do not think the inquiry took too wide a range.

The investigation was sufficiently confined to the immediate neighborhood of the fire, and it is not perceived that the plaintiff in error could have been injured by it. There is another view' under which this evidence was clearly proper.' The fire started at bridge 71, half a mile from the wood pile, in the intervening space a second fire was started by the same train. The foreman who was fighting the first fire abandoned it for a time to extinguish the other. In the mean time the first fire increased and spread.

It was proper to consider the condition of the track through the entire distance, as affecting the question of contributory negligence of defendants in error in their action in opposing the spread of the /ires. The instruction of the court upon the statute quoted above is assigned as error.

The court said: “It was made hereby the duty of the defendant to keep the railroad track and right of way, to the distance of 100 feet on each side of such track, free from dead grass, weeds, and other dangerous and combustible material, and the failure to do so was prima, fa,ele evidence of negligence on the part of the railroad company. ” ' It is claimed that this instruction leaves out of consideration the question whether the combustible material left in the right of way was the means of communicating the fire.

This instruction, so far as it goes, is a synopsis of the statute, and consequently a correct exposition of the law. The record discloses that the only exception taken to it was on the ground that there was no evidence to show the width of the right of way to have been 100 foot on each side of the center of the track, and that the width was a question of fact for the jury. If there were any error in the failure to charge further, as now claimed, it was waived by the plaintiff in error. Mutual Life Co. v. Snyder, 93 U. S. 396.

It is claimed that there was error in the instruction upon the subject of contributory negligence. The court charged the jury that it devolved upon the defendant to prove, by a preponderance of evidence, that the plaintiffs were guilty of contributory negligence. Plaintiff in error admits the correctness of this rule in ordinary cases, but contends that whenever the plaintiff, in making his case, shall have disclosed evidence of his own contributory negligence, the burden of proof is shifted, and it devolves upon him to show that his negligence was not of a character to bar his right of action.

The evidence which it is claimed proved the plaintiffs’ contributory negligence consisted in the fact that, upon the further side of the wood pile, and extending towards the timber, the plaintiffs had failed to clear the brush and combustible material out of an open draw, through which draw the fire, after reaching the timber, was communicated to the wood. We cannot see in this omission any evidence of contributory negligence. The law did not impose upon the defendants in error the duty of clearing the ground around their wood pile.

As a matter of precaution, they had cleared away inflammable material at all points where they anticipated danger of the approach of fire, and there was nothing in their failure to clear the draw which would shift the burden of proof. Coasting Co. v. Tolson, 139 U. S. 557, 11 Sup. Ct. Rep. 653. The instruction of the court- upon the subject of intervening cause is assigned as error. The evidence was that at the beginning of the fire the wind was from the south, and served tp blow the fire away from the road; subsequently it shifted to the north, a change which was usual at that time of the year.

There is no evidence of a change in the intensity of the wind. The court charged the jury as follows: “It is claimed the rise and change of the wind should be classed as an intervening cause, but I must state to you that I think it should not be so considered.” It is contended that the jury should have been allowed to determine whether the change in the wind was an intervening cause. No authority has been cited which supports this contention. It is only the occurrence of a heavy and extraordinary wind that has in certain eases been held to be an intervening cause.

A simple, and not unusual, change in the direction of the wind cannot be said to disturb the unbroken connection between the wrongful act and the injury, and hence is not an intervening cause. The jury were properly so instructed. The judgment is affirmed.