55 Wis. 106 | Wis. | 1882
This action was brought by the respondent to recover damages of the appellant company for negligently setting fire to his barn and other buildings, thereby destroying the same with their contents. This case has been in this court before, and the judgment in favor of the plaintiff was reversed for error in the instructions of the court. 50 Wis., 231. None of the questions raised on this appeal were commented upon or decided on that appeal. The learned counsel for the appellant insists that there was no evidence on the part of the plaintiff to sustain the verdict, and that his motion for a nonsuit should have been granted. lie also takes exceptions to certain evidence offered and received on the part of the plaintiff, and to instructions given to the jury. It is strenuously insisted that the court should have nonsuited the plaintiff, because the company proved that the engine at the time was a perfect engine in all respects, and was provided with suitable appliances in every respect for preventing the escape of coals and fire when running upon the road, and because the persons in charge of the engine and train at the time it is alleged the fire was communicated therefrom to the plaintiff’s barn, testified that the engine was run in a careful manner; that the spark-arrester, or screen on the top of the smoke-pipe, and the fire-box, were closed at the time, so that no coals or sparks of a dangerous kind could escape
With this evidence before it, it is very clear that the court was right in refusing to nonsuit the plaintiff. The credibility of the testimony of the several witnesses was a matter for the
If the engine was properly made, so that when properly worked and handled by those in charge it would not and could not emit coals and cinders of the size which the plaintiff’s witnesses testified they saw emitted by it at the time it passed the plaintiff’s barn, and such as were found on the track and snow by the side thereof immediately after it passed, then it becomes a question of veracity between the plaintiff’s witnesses and the witnesses of the defendant, who swear that the engine was properly handled and run at the time, with the screen of .the smoke-stack closed, and the doors of the fire-box closed, so that such cinders and coals could not escape; and this question of veracity the court had no right to determine; its determination was for the jury, and it was properly submitted to them by the court. They were expressly instructed that in order to find a verdict for the plaintiff they must find “ that the agents and employees of the defendant were at the time guilty of negligence in running and managing the locomotive, by means of which sparks or 'coals of fire were thrown out by it, and by the force by which they were thrown from the locomotive and the wind then prevailing, they were thrown upon the
A witness for the plaintiff was allowed, against the defendant’s objection, to testify how the fire thrown from the locomotive that morning, at the time it passed the plaintiff’s barn, compared with the fire coming from the engines on that road before that time. We think this evidence was competent to show that it was at the time emitting an unusual quantity of fire. A similar objection was made to the same kind of testimony given by other witnesses of the plaintiff. We see no reason for excluding this kind of evidence, and think the objections were all properly overruled.
On the cross examination of one of the plaintiff’s witnesses, by the defendant, he volunteered the statement that he had
The defendant also alleges as error the admission of the evidence of the witness Waterman. This witness was permitted to testify that shortly after the train passed on the morning of the fire (about fifteen minutes after), he went up from the east on the track; that he noticed coals on the track, some as big as his thumb; saw a good many on the snow east of the track; the wind was from the west; saw coals fifty feet east of the track; did not notice any on the west of the track; should call the coals I saw fresh coals. I saw some stumps on fire east of the track, and fifteen feet from the track,— half a dozen; they were not on fire the night before; they were forty to sixty rods from the buildings of the plaintiff which were burned.
This evidence we think admissible for two purposes: first, as bearing upon the question whether the fire emitted from the engine set the plaintiff’s buildings on fire; and second, upon the question of negligence in running the same at the time in question.
The admissibility of evidence of this kind is affirmed by the court of appeals in Mew York, by the supreme court of Massachusetts, and by the courts of most of the states which have passed upon the question, as will be seen from an examination of the cases cited below. We have no doubt of
The learned counsel for the appellant has not in his brief, ■or in his oral argument at the bar, insisted upon his exceptions to the refusal of the court to give the instructions requested by him, nor to the instructions given. Upon an examination of the instructions asked and refused, and the charge given by the court, we think the instructions asked were properly refused, and those given properly submitted the case to the jury.
By the Court. — 'The judgment of the circuit court is .affirmed,