McCool v. Davis

¹ Reported in 202 N.W. 900. This case has been here before and is reported in 158 Minn. 146,197 N.W. 93. We then reversed an order denying a new trial because, to a majority of the court, there seemed to be a defect of proof, one however possible of being made good on another trial. In consequence, the case was returned for a new trial. The result is another verdict for plaintiffs, followed by a motion on behalf of defendant for judgment notwithstanding the verdict or for a new trial. This appeal is from the denial of that motion.

Before proceeding to the merits of the case, it is well for us to say, in view of a misconception indicated by the memorandum accompanying the order appealed from, that if the present record were the same in substance as that presented on the first appeal, there would be a reversal with directions for judgment for defendant notwithstanding the verdict. The decision before to the effect that the record then presented did not make out a case for plaintiffs, is the law of the case, and would control the result if the same record, or one substantially the same, were again before us. A second verdict is not a substitute for a fatal defect of proof in the case of the party having the burden of proof. Swenson v. Erlandson, 86 Minn. 263, 90 N.W. 534, and cases cited.

That is not the case, however. At the second trial all of the testimony of the first was read to the jury under a stipulation giving that reading the same effect as would have attended the calling of the witnesses whose testimony was thus read. Additional witnesses were called, most of them new to the case. This testimony constitutes a new record of 1275 pages. Our problem has been to determine whether the case for plaintiffs, now resting upon the old record plus the new and the verdict and refusal of a new trial, is successfully fortified against the argument that plaintiffs have not proved, in a measure conforming to legal standards, that their residence property in Woodland, a northerly suburb of Duluth, was destroyed (at about 7 p.m. on Saturday, October 12, 1918), by a fire set a few days previously by a Great Northern locomotive at Mile Post 62, approximately 29 miles due west of Woodland.

Defendant's argument again is that plaintiffs' proof fails of its purpose because it leaves the Mile Post 62 fire in the realm of conjecture as an agency of causation. For reasons hereinafter indicated, we cannot now agree with that argument and are of the opinion that the verdict must stand and the order appealed from be affirmed. The case, as then viewed by a majority of the court, is comprehensively stated by the Chief Justice in the former opinion, to which reference must be made for an understanding of this decision. The map accompanying the former opinion is also a necessary aid to an understanding of this one.

We have never been in any doubt concerning the sufficiency of plaintiffs' proof that the "big fire" (the one originating at Mile Post 62 will be so referred to for convenience), left the point of its origin before 2 p.m. on October 12 with a running start on its course of destruction, and that it proceeded in a course somewhat south of east to the region of "Five Corners," at the corner common to sections 17, 18, 19 and 20 in township 50-15. That is nearly 10 miles west of southwest of plaintiffs' residence. Between Five Corners and Woodland, so far as the big fire was concerned, it was the opinion of a majority of the court on the former appeal that there was such a doubt left by the evidence that plaintiffs' case, for the time being, rested upon conjecture and mere possibility and that the verdict could not stand.

Speaking for myself, I could not then escape the conclusion that fires coming from the northwest, or west of northwest, including the Caribou lake and Rice lake regions, were more likely the cause of the destruction of Woodland than the big fire. With respect to that phase of the situation, the new record presents a marked change to be hereinafter referred to.

Without now going into detail, we are of the opinion that the evidence, particularly that in the new record, sustains the verdict at all points, including the tracing of the big fire from Five Corners to Woodland. Many of the new witnesses were called from the territory between the two points in question. Some of them came from the northeasterly portion of Herman township (50-15); others appeared from sections 7, 8 and 18 in township 50-14, just south of the Norman Dairy and southeast of the county Work Farm. Others came from the region just north of there and several were from Woodland itself and the immediate vicinity of plaintiffs' premises. The testimony permits the conclusion that the big fire got to Five Corners anywhere from 4:30 to 6:00 o'clock, depending on how the testimony is considered with respect to the time element, and proceeded thence northeasterly to Woodland. This implies a change in wind direction from west or slightly north of west to south of west. There is testimony that such a change took place in time to carry the fire to the locality immediately north of plaintiffs' home from which it could have been carried to that residence by the admitted sudden wind shift to the north at about 7 p.m.

There is another aspect in which the new record, viewed as the jury were at liberty to view it, changes the situation to the detriment of defendant. That is the proof tending to eliminate other fires, not of railroad origin, as agencies of causation.

For example, there is testimony, and it is not all new, that there was no fire north of the St. Louis river, just across from Mile Post 62, until some hours after the big fire had left that point. This testimony would have enabled the jury to eliminate any fire coming from the region in question, north of the St. Louis river, from further consideration. They could have considered that the fire, if any, from this territory did no more than join with and become swallowed up by the big fire at some undetermined point in the area south of Grand Lake.

In the same manner the rather substantial fires south of Sunset lake and west of Grand lake could have been considered at the worst, as nothing more than delayed contributors to the holocaust wrought by the big fire.

Farther east is what may be referred to as the Caribou lake and Rice lake region. Reference to the map will indicate what is meant. The northern limit of this fateful Saturday's destruction, in this area, extended in an irregular line from the north shore of Caribou lake to the south shore of Rice lake. The zone between this line on the north and Grand lake and Pike lake on the south was burned over, so far as the record shows, by a fire probably not of railroad origin. In any event, this opinion assumes that to be the fact. But this fire, it now appears, came on its way too late, at least there is now ample room for that inference, to have beaten the big fire to Woodland.

Briefly, these are some of our reasons for concluding that the verdict for plaintiffs, as now supported, should not be disturbed. There are other considerations, some of them general and some particular and limited to details, which might be gone into. But any extended treatment would unduly prolong discussion. That some of us feel the facts to be otherwise than as found by the jury does not entitle us to nullify their determination. They were not impressed, at least not to the point of being controlled, by the fact that the northwest wind which in Hall v. Davis, 150 Minn. 35, 184 N.W. 25, was successfully shown to have carried the big fire from Mile Post 62 to Cloquet has now become first a west and then a southwest wind capable of taking the same fire to Woodland. There may be merit in the argument that this timely wind shift had its source only in the mind of witnesses. But this and other arguments for defendant do not permit us to say that there is not, as a matter of law, enough evidence to sustain the verdict.

Those of us who share in this view are sensible of the ease with which a fact argument can be made contra. By referring to selected testimony and assuming its truth, particularly as to time, it is easy to come to the conclusion that the big fire never got to Woodland. (That is my conclusion on the facts.) That argument, however, cannot escape the stubborn fact that there is other evidence in opposition and supporting the conclusion that it was the railroad fire that destroyed Woodland. There is testimony which, summed up, takes the big fire to Woodland. There is also ample support for a contrary conclusion. The issue was for the jury.

An illustration of some minor but important conflicts between witnesses is the story, of some, that there was fire at Calvary Cemetery at a much earlier hour and of others, that there was no fire there at all as late as 6 p.m. Several witnesses now testify that the fire came to Woodland from the southwest and not from the northwest. The testimony is conflicting also concerning the smaller fires and their activity. Some witnesses testified that a certain fire was out of control — others that it was out or under control.

It was for the jury to say whether the big fire was impelled by an initial draft not possessed by any of the others. That is so because of its kindling and first fuel supply, consisting of the accumulation of dry debris and hundreds of carloads of forest products at Mile Post 62. A few miles farther east, the main advance of this fire may have been relayed on by another large yard of cordwood — hundreds of cords of it. To what extent the gale of that afternoon was fire created, we cannot tell. That the big fire made a draft of its own, with a powerful traction, goes without saying. The "mighty march" of flame was probably not on an even front. It might have gone forward at times in separated columns which ultimately joined with each other or with fires of different origin. Again, "throwovers" from such a fire, carried by its own draft, independently of the wind, might, and in this case undoubtedly did, set fires far in advance of the main sweep of the flames. There is testimony to that effect.

Independently of the fire-created gale, whatever it was, there was a strong wind. Any fire would have been dangerous, but any ordinary fire could not have the initial impetus of that starting from Mile Post 62. It is entirely possible for that fire to have acquired, at the start, a speed and sweep which would explain a phenomenon the testimony presents, that of other fires, some innocuous and some dangerous, absolutely swallowed and lost in the irresistible and far flung charge of flame from the west and southwest — the so-called big fire.

A final and important consideration is that this verdict, unlike the first, as to the sufficiency of its evidentiary basis, has the unqualified approval of the learned trial judge. That element was largely absent when the case was first here. The approval of the first verdict by the trial judge was of an exceedingly questioning and critical character, and properly so. While we are not controlled in this or any other case by the views of the trial judge, we are always vastly aided by the expression of them. It not only helps our review, but lends to the result an assurance, seldom to be had from any other source, which makes us more certain of serving the law and accomplishing justice.

The assignments of error with respect to rulings at the trial have received consideration and we find in them nothing justifying, at this stage of the case, a reversal.

Order affirmed.