Mahoney v. St. Paul, Minneapolis & Manitoba Railway Co.

It was in the discretion of the trial court to allow the questions referred to in the first assignment of error, though not proper cross-examination, to be asked at that stage of the trial. It is often done to avoid recalling a witness. There was evidence of the fact which appellant claims is assumed by the question referred to in the second assignment of errors.

The court was correct in refusing the request to charge as referred to in the third assignment of errors, for it would have made an issue not tendered by the complaint. The evidence referred to in the request was admissible, and, as the court below charged, proper to be considered by the jury on the charge of negligence in operating the engine; for it went to show the degree of care neeessary to be used in operating it, under the circumstances. Being admissible upon an issue made by the pleadings, its admission without objection cannot be taken as a consent to try any issue not made by the pleadings. City of Winona v. Minnesota Ry. Const. Co., 27 Minn. 415, (6 N. W. Rep. 795, and 8 N. W. Rep. 148.)

The fourth, fifth, and seventh assignments of error may be considered together. They all assume that, in some way, the statute (Gen. St. 1878, c. 34, § 60,) changes the character of the issue to be tried in the actions contemplated by it. The statute itself does not indicate it. The ground of the company’s liability in such cases is not the fact that damage by fire scattered from its cars or engines *363has been sustained, but its negligence, or defects in the engines. The statute makes the fact of the fire being so scattered prima facie evidence of such negligence or defect. The existence of such negligence or defect is still the issue to be presented by the complaint and tried by the jury. The statute merely relieves the plaintiff, he having shown that the fire was scattered by the engine, from taking the initiative upon the issue as to negligence or defect in the engine, by raising a presumption which makes out his case till it is rebutted by defendant. Those three assignments of error are not well founded. There does not appear to be anything in the sixth and eighth assignments.

Order affirmed.