Austin v. Chicago, Milwaukee & St. Paul Railway Co.

| Wis. | Jun 19, 1896

Mabshall, J.

The evidence tended to show that those who had charge of the land for plaintiff, and defendant’s-servants as well, supposed, on the evening of August 3,1893, that there was no further danger to be apprehended from the fire, and that such condition had not changed by the succeeding morning. Defendant’s servants left the premises on the evening of August 3, 1893, and on the following morning the persons who had been guarding the premises, for plaintiff went blueberrying, leaving a boy of fifteen years-of age in charge. Thereafter the fire freshened up and caused the greater part of the damage complained of. The court, by the eighth and ninth questions of the special verdict, covered the subject of whether there was a want of ordinary care on the part of plaintiff after the morning of the 4th. The finding was in her favor, and it is alleged as-error that the court did not, as requested, direct the jury to find on this branch of the case in defendant’s favor. The facts covered by the questions were material and important, for, if the fire was caused by want of ordinary care on the part of defendant, still it would not be liable to answer for any damages which the exercise of ordinary care on the part of plaintiff, or of those for whose conduct she was responsible, might have prevented. Mills v. C., M. & St. P. R. Co. 76 Wis. 422; Gibbons v. W. V. R. Co. 62 Wis. 646. Without referring in detail to the evidence on the subject, suffice it to say that a careful examination of the record leads to the conclusion that the questions were properly submitted to the jury. There was evidence tending to show that there was no probable danger to be apprehended df further spread of fire as the situation appeared on the morning of August 4th. Such being the case, clearly the trial court was not warranted in deciding, as a matter of law, that there was want of ordinary care on the part of those for whose conduct plaintiff was responsible in that they left the premises at that time.

The appellant requested the submission of the following question: “ Could it have been reasonably anticipated that the fire remaining on plaintiff’s premises on the evening of August 3, 1893, would have spread further on said premises?” This was refused, and such refusal is assigned as error. If the question was directed to whether there was a breach of duty on the part of plaintiff, the refusal to submit it was not error, as that subject was fully covered by questions 8 and 9, above referred to. We assume that the question related solely to whether defendant’s servants exercised ordinary care in leaving the premises on the evening of the 3d, and making no effort thereafter to control or put out the fire; and in that light it was immaterial. If actionable negligence oñ the part of defendant caused the fire which spread directly to plaintiff’s land and caused the damage complained of, whether there was ordinary care exercised on its part or not to quench such fire does not affect plaintiff’s right to recover.

The next and last error assigned is that the court erred in not setting aside the verdict and granting a new trial upon the ground that it was contrary to the evidence. Each question of the special verdict covered a controverted fact, upon which there was some evidence to be considered by the jury and to support their finding. It follows that we cannot say that there was an abuse of discretion on the part of the trial judge in refusing to set the verdict aside as contrary to the evidence, and to grant a new trial.

By the Court.— Judgment affirmed.