Bratz v. Stark

138 Wis. 599 | Wis. | 1909

Dodge, J.

The only error which is both assigned and argued by appellant consists in permitting the verdict to stand in defiance of asserted uncontradicted evidence that defendant negligently caused the fire which damaged plaintiff. For convenience we will refer to the fires started by the defendant in the morning to bum his brush as the “brush pile fires,” and to that which originated in the afternoon in the woods on defendant’s land as the “woods fire.” There was no direct evidence how the latter started. It is argued that the proximity of the brush pile fires was such that an inference must be drawn that either those fires escaped and ran into the woods or that the high wind blew sparks or brands. There is evidence which, if credited, fully negatives the former theory, and there is evidence that defendant stayed with the brush pile fires until they had entirely burned out, leaving not until nearly noon. There is also evidence that defendant did nothing else to in any way cause the woods fire. So that we think there was evidence at least sufficient to warrant the jury in absolving defendant from any responsibility for the starting of the woods fire, whether by negligence or otherwise. As to any negligence in permitting the woods fire to escape eastward unto plaintiff's land, the evidence is undisputed that at the time it was discovered it was raging before a high westerly wind, with such vehemence that no human efforts could have stayed its progress to the leeward, and that it would have been not only futile but foolhardy to make any efforts in the face of that fire. Such evidence was clearly sufficient to at least malee a jury question whether defendant was guilty of negligence in not making such attempt. Apart from such omission there is no suggestion of negligence. This assignment of error cannot be sustained.

There is some argument, though no assignment of error, that the verdict does not cover the issues, since 'the one answered question of the special verdict does not inquire as to defendant’s negligence in permitting fire to escape after it had been started. We have no doubt that the question in the verdict refers to the woods fire, since that was the one that escaped unto and injured plaintiff’s land. Therefore inquiry as to whether that fire was caused by defendant’s negligence did submit the question whether any negligence of his, either in starting or in guarding the brush pile fires, was responsible for originating the woods fire; and the court very clearly instructed the jury to so consider the evidence in answering the question submitted. After the woods fire started and was discovered, the evidence is undisputed and conclusive that no precautions could Rave been taken or efforts made of any effect to prevent its escape unto plaintiff’s lands, and not without unreasonable danger to the life of any person so undertaking. Hence there was no occasion to submit that question to the jury. In any event, the failure to submit it, even in the presence of conflicting evidence, in the absence of a special request by appellant, need not reverse the judgment; for, even if the evidence is not conclusive, it is sufficient to support a finding by the trial court that there was no negligence in permitting the escape of that fire, which finding must he deemed to have been made in obedience to ch. 346, Laws of 1907 (sec. 2858m, Stats.)

Certain other assignments of error are not argued and therefore need not be here considered.

By the Court. — Judgment affirmed.