60 Wis. 141 | Wis. | 1884
The learned counsel for the defendant has presented a very forcible argument, in which he endeavors to distinguish this case from the case of Kellogg v. C. & N. W. Py Co., 26 Wis., 223, and Brown v. C., M. & St. P. R’y Co., 54 Wis., 342, and presses upon this court the propriety of limiting the liability of a person who negligently sets fire to . a building, either to the value of the building first fired, or at most not to extend the liability beyond such other buildings as were necessarily destroyed by the mere fire of the conflagration of the first; and he insists that this court ought to hold, as a matter of law, that the burning of the plaintiff’s building in this case is a purely consequential and remote result of the fire kindled by the negligence of the defendant, and that its destruction was not the immediate or proximate result of the negligence of the defendant, admitting that the company is chargeable with negligence in firing the planing-mill.
In the case in 94 U. S., supra, the court say: “The true rule is that what is the proximate cause of the injury is ordinarily a question for the jury. It is not a question of science or legal knowledge. It is to be determined as a fact in view of all the circumstances of fact attending it. The primary cause may be the proximate cause of the disaster, though" it may operate through successive instruments, as an article at the end of a chain may be moved by a force applied at the other end, that force being the proximate co.use of the movement; or as in the oft-cited case of the squib thrown in the market-place. 2 Bl. Rep., 892. The question always is, Was there an unbroken connection between the wrongful act and the injury, a continuous operation? Did the facts constitute a continuous succession of events so linked together as to make a natural whole, or was there some now and independent cause intervening between the wrong and injury? It is admitted that the rule is difficult of application. But it is generally held that in order to warrant a finding that negligence, or an act not amounting to wanton, wrong, is the proximate cause of the injury, it must appear that the injury was the natural and probable consequence of the negligence or wrongful act, and that it ought to have been foreseen in the light of the attending circumstances. These circumstances, in a case like the present, are the strength and direction of the wind, the combustible character of the elevator, its great height, and the proximity and
¥e have taken the liberty of quoting at length from the case above cited, for the reason that the doctrine of the case has been approved by this court, and because the facts of that case are quite similar to the facts of the case at bar. The rule laid down in the case above cited has been approved by the following cases cited by the learned counsel for the respondent in his brief: Perley v. Eastern R. R. Co., 98 Mass., 414; Higgins v. Dewey, 107 Mass., 494; Ins. Co. v. Tweed, 7 Wall., 44; Ins. Co. v. Boon, 95 U. S., 117; Brady v. N. W. Ins. Co.. 11 Mich., 425; St. John v. A. M. F. & M. Ins. Co., 11 N. Y., 519; Butler v. Wildman, 3 Barn. & Ald., 398; Lund v. Tyngsboro, 11 Cush., 563; Barton v. Home Ins. Co., 42 Mo., 156; Marcy v. M.M. Ins. Co., 19 La. Ann., 388; Fent v. T., P. & W. R’y Co., 59 Ill., 349; Hoyt v. Jeffers, 30 Mich., 181; A. & E. R. R. Co. v. Gantt, 39 Md., 115, 141; Kuhn v. Jewett, 32 N. J. Eq., 647; Vandenburg v. Truax, 4 Denio, 464. The only cases which hold a different doctrine from that above cited are Ryan v. N. Y. C. R. R. Co., 35 N. Y., 210, and Penn. R. R. Co. v. Kerr, 62 Pa. St., 353. These cases were noticed and disapproved by this court in the case of Kellogg v. C. & N. W. R'y Co., 26 Wis., 223, as well as in many of the other cases above cited. The rule established by the cases abo've cited is approved in the English courts in the following cases: Vaughan v. Taff Vale R’y Co., 3 Hurl. & N., 743; Smith v. L. & S. W. R’y Co., L. R. 5 C. P., 98; Collins v. Middle Level Commissioners, L. R. 4 C. P., 279; Romney Marsh v. Trinity House, L. R. 5 Exch., 204; S. C., affirmed, L. R. 7 Exch., 247; Sneesby v. L. & Y. R'y Co., L. R. 9 Q. B., 263; The George and Richard, L. R. 3 Adm. & Ecc., 466; Byrne V. Wilson, 15 Ir. C. L., 332; Jones v. Boyce, 1 Stark., 493. Many other cases, both in England and in this country, might be cited holding the same general doctrine, but the
But the learned counsel for the appellant insists that the Atldnson house was at so great a distance from the point where the fire was kindled, admitting it to have been kindled by the negligence of the defendant, that there could be no reasonable apprehension on the part of an ordinarily prudent man thát the fire so kindled would extend to and burn such house. That question is also a question for the jury, and not of law for the court. The force of the wind at the time, the dryness of the season, and the combustible nature of the buildings intervening between the place where the fire was kindled and the place where the plaintiff’s house stood, were all facts to be considered in determining whether there was a reasonable probability that the fire would extend so far, and the jury must pass upon these facts as bearing upon the question of reasonable probability. The learned counsel for the appellants cite the case of T., W. & W. R'y Co. v. Muthersbaugh, 71 Ill., 572, as bearing upon this question. If that case was properly decided, we think the facts are so different from the facts in the case at bar as not to have any considerable force in the decision of this case. In that case the building burned was about 100 rods from the building first fired by the negligence of the .railway company, and there were no intervening buildings or combustible matter between the two buildings which might be a means of conveying the fire from the one to the other, and the court held, as a matter of law, that there was no reasonable probability of the fire extending from the first building to the second, and so directed a verdict for the
On the whole evidence in the case Ave think there was no error in refusing to order a nonsuit, or in refusing to direct a verdict for the defendant.
We will now consider the exceptions taken to the admission of the evidence objected to by the defendant, the exceptions to the rulings of the court as to the questions which should be submitted to the jury for their special verdict, the instructions asked by the defendant and refused, and the instructions given to which exceptions Avere taken.
The objections to the evidence relate to the ordinance of the city of Green Bay, which was offered by the plaintiff as evidence. There are several objections raised by the learned counsel for the appellant to the validity of this ordinance-: First, it is said to be a regulation of commerce, and therefore void; second, that it was a violation of the regulations of the inspectors of boats and vessels, and its use Avould endanger the boat, its cargo, and passengers; and, third, that it Avas an unreasonable ordinance. We do not feel called upon to determine whether the first and second objections to the ordinance were well taken, as we have come to the conclu
We think the court erred in permitting the ordinance to be read to the jury, and in instructing the jury that it was negligence par se on the part of the defendant to run its
The appellant insists that the court erred in refusing to submit the questions above set out in the statement of facts to the jury as a part of their special verdict, and in refusing to give the instructions requested. These questions and instructions asked fairly raise the question whether, in an action to recover damages for the negligent act of the defendant, the plaintiff must, in order to establish the fact that the negligence of the defendant was the proximate cause of the injury complained of, show that it was reasonable to expect that such injury would result from such negligence. This question was, we think, answered in the affirmative by the supreme court of the United States in the case of Mil. & St. P. R’y Co. v. Kellogg, supra, (94 U. S., 469). The language of the courtis as follows: “But it is generally held that, in order to warrant a finding that negligence, or an act not amounting to wanton wrong, is the proximate cause of the injury, it must appear that the injury was the natural and probable consequence of the negligence or wrongful act, and that it ought to have been foreseen in the light of the attending circumstances.” This language is repeated by the learned judges who delivered the opinions in many of the cases above cited, in different forms, but all the judges using similar language seem to hold that negligence cannot be fairly said to be the proximate cause of an injury unless it appeai-s to be the natural and probable consequence of the wrongful act, and that it might or ought to have been foreseen under all the circumstances. Some of the cases use this language: “ The injury or the destruction of the property complained of was a result that might have been reasonably expected (though not, in fact, anticipated) from the defendant’s negligent act.” Del., L. & W. P. R. Co. v. Salmon, 39 N. J. Law, 311. The late learned Chief ■ Justice Dixon, in his very able and exhaustive discussion of this
The counsel for the appellant requested the circuit judge to instruct the jury as follows: “You cannot answer question number five‘Yes’ unless you find that while the boat was passing the planing-mill it was reasonable to expect that sparks, cinders, or coals from her smoke-stack would cause the destruction of Atkinson's house.” This instruction was refused, and it was repeated in different ways, but in substance the same, and all were rejected. Question five reads as follows: “Was the burning of the plaintiff John Atkinson's house the natural result of the burning of the planing-mill?” The court had refused to submit to the jury the question: “Was it reasonable to expect that the fire which destroyed the planing-mill would extend to and destroy the house of the plaintiff Atkinson?" and-the other question: “Was it reasonable to expect when the boat passed the planing-mill that the fire from her smoke-stack would set fire to the planing-mill?” • These two questions the court refused to submit to the jury, and, instead, submitted number five above quoted, so that the defendant was prevented from having the questions passed upon by the jury, unless the court instructed them as requested, although it did not follow logic
"We think the decided weight of authority is in favor of the rule that in an action for negligence the defendant has the right to have the question submitted to the jury whether the result which is the -ground of action might, under all the circumstances have been reasonably expected, not by the defendant, -but by a man of ordinary intelligence and prudence; and we think it very clear that no such question was submitted to the jury either by the special verdict or by the instructions given. It would seem that it is not enough to prove that the result is the natural consequence of the negligence, although that-fact would be evidence tending to show that it might have been reasonably expected.
The question whether a result may'or may not be reasonably expected to follow certain acts is very material upon the question of negligence. A person is not called upon to use that degree of care against an improbable result which he would be bound to use against a probable one. The contradictory evidence in this case, as to the direction of the wind at the time the boat was passing up the river, is an apt illustration of the rule. If it had been conclusively established that the wind was blowing directly down the river, as contended for by the defendant’s witnesses, and so carrying the sparks emitted from the smoke-stack away from the buildings on the shore and over the water of the river, there would have been the greatest improbability of their setting fire to any of the buildings on the shore; -and if, by some unexpected and unexplained cause, the sparks from the smoke-stack had ignited a building on the shore, no jury in such case would be likely to say that such an accident should have been foreseen or have been reasonably expected to
The circumstances which do in fact exist are to be determined by the jury from all the evidence; and when they have determined what the circumstances were at the time, then they can, with some reasonable degree of certainty, determine the question whether the result could have been reasonably expected to occur, in the light of such circumstances. As this question was not submitted to the jury as a fact for them to find in their special verdict, and as the court refused to.instruct them that in order to charge the defendant with liability for the damage done to the plaintiffs the}7' must find that under all the circumstances the destruction of the plaintiff's house could have been reasonably expected to occur as the result of the defendant’s negligence, the circuit court committed an error for which the judgment must be reversed.
We do not understand that this ruling is in conflict with the case of Brown v. C., M. & St. P. R'y Co., 54 Wis., 342. In
Another point was pressed with a- great deal of earnest-' ness upon the court by the learned counsel for the appellant, as conclusive against the right of the plaintiffs to recover. The jury found that the owner of the planing-mill was negligent in permitting shavings and sawdust to remain and accumulate between the mill and the dock, under the circumstances developed by the evidence, and it also appears quite conclusively that the fire which was kindled by the sparks emitted from the smoke-stack of the defendant’s boat (if any such fire was kindled) was kindled in these shavings and sawdust, and spread to the mill and fired that. It is claimed by the learned counsel that this negligence of the imll-owner was such an intervening cause between the negligence of the defendant and the final destruction of the plaintiff’s house that its destruction must be, in the law, attributed to such intervening cause, viz., the negligence of the mill-owner. The learned counsel for the appellant cites Wharton on Negligence as sustaining his proposition. Although this learned author has gone as far, if not farther, than any other in sustaining the views of the learned counsel, we think he does not sustain him upon the facts of the case at bar. In Wharton on Negligence, sec. 144, the author lays down this proposition: “The fact that another person contributed, either before the defendant’s interposition, or concurrently with such interposition, in producing the damage, is no defense.” lie gives the following as an illustration of the rule: “A. negligently leaves certain articles in a particular place. B. negligently meddles with them; Supposing B.’s negligence to be made out, and he a
Whether we consider the negligence of the owner of the planing-mill as an interposition before or concurrently with the negligence of the defendant in producing the damage, it is no defense to the plaintiffs’ action. This we think is fully established by nearly all the authorities, and, as we understand the rule as stated by Wharton, is not denied by him. In one sense the negligence of the owner of the planing-mill was concurrent with the negligence of the defendant'. The negligence of the owner of the mill was a continuing negligence; it was present and acting at the time of the negligence of the defendant; it aided in kindling the fire and spreading it to the mill, and from that to the surrounding buildings. The authorities cited by the learned counsel for the respondents fully establish the fallacy of this -objection made by the appellant. Cooley on Torts, 79; Ricker v. Freeman, 50 N. H., 420; Lake v. Milliken, 62 Me., 240; Bartlett v. B. G. L. Co., 117 Mass., 536; Johnson v. C., M. & St. P. R'y Co., 31 Minn., 57; Small v. C., R. I. & P. R. R. Co., 55 Iowa, 582; Burrows v. M. G. & C. Co., L. R. 5 Exch., 67; Oil City Gas Co. v. Robinson, 99 Pa. St., 1; Rylands v. Fletcher, L. R. 3 Eng. & Ir. App., 337; Child v. Hearn, L. R. 9 Exch., 183; Illidge v. Goodwin, 5 Car. & P., 190; Davis v. Garrett, 6 Bing., 716; Greenland v. Chaplin, 5 Exch., 247; Lynch v. Nurdin, 1 Q. B., 29; Griggs v. Fleckenstein, 14 Minn., 81; Pastene v. Adams, 49 Cal., 87;
Other exceptions were taken to instructions given to the jury on the question of negligence. It is claimed by the appellant that the court, in some of the instructions excepted to, assumed the functions of the jury by stating that the neglect of the defendant in not providing its boat with proper and adequate means for preventing the emission of sparks from the smoke-stack, would be negligence in law, instead of evidence of negligence. Usually the question of negligence is a question of fact for the jury and not of law for the court. The acts which can be declared negligence as a matter of law, should be such as to admit of but one reasonable answer. Whether running up the harbor of Green Bay with a steamer so equipped and managed as to emit a large quantity of sparks from the smoke-stack was negligence in law, would depend upon the attendant circumstances, the state of the weather, the direction and force of the wind, and the distance of the boat from the buildings upon the shores. We are inclined to think that the instruction quoted in the statement of the case, as excepted to, is
On account of the errors above indicated the judgment of the circuit court must be reversed.
By the Court. — 'The judgment of the circuit court is reversed, and the cause remanded for a new trial.
