Caswell v. Chicago & Northwestern Railway Co.

| Wis. | Jan 15, 1877

Lead Opinion

Cole, J.

The county court gave all the instructions asked on behalf of the defendant company, and submitted to the jury certain questions in the nature of a special verdict. The jury found generally for the plaintiffs; specially negatived contributory negligence on their part; and found that the company was guilty of negligence “ by not using proper precaution, in the handling of the engine, to prevent the extraordinary escape of sparks in passing the barn.” An objection is taken to this finding, that it is defective as stating a mere conclusion of law. It is said that it should point out the specific facts 'upon which negligence is predicated. But it is manifest that it might be difficult, if not impossible, for a party to show, and the jury to find, the precise act or thing which constituted negligence. Eor instance, the evidence might be perfectly conclusive to sbow that the employees of the company had managed the engine in an unskillful and improper manner, and that a fire had been caused thereby, but a party might not be able to prove the specific negligent act, whether it -was in running the train too fast, putting on too much steam, opening drafts or supplying fuel, or in what it was. The engine and train are under the management and. control of the servants of the company; they alone know what is really done. A party injured can only show the facts and circumstances attending the transaction from 'which negligence may be inferred. It is not possible for him to prove the particular person guilty of the negligent act, whether it was the fireman or engineer, or to show what they did. The jury found that the employees did not take or use proper precaution, in managing the engine, to prevent the escape of fire. This was a sufficiently specific finding in respect to negligence, we think.

But it is further objected that there is an entire want of testimony to sustain the verdict. This position cannot be successfully maintained. ■ There is evidence from which the jury might have inferred that there was negligence in the management of the locomotive. There was certainly evidence offered on the part of the plaintiff tending to prove that the engine, as it passed along by the barn about the time the fire occurred, was making an unusual noise, throwing sparks and burning cinders in large quantities. It was going on an up-grade; the day was windy; and it was a legitimate inference from the testimony, that the employees in charge of the locomotive were not exercising proper care and caution in operating it, considering the danger to buildings situated near the track. There is little room to doubt that the barn was destroyed by fire communicated from or thrown upon it by the engine. And it was for the jury to say whether this resulted from the careless use and management of the engine, or not. There is surely some evidence to support the verdict and findings, and therefore they cannot be disturbed by this court.

It is also insisted that the plaintiff was guilty of contributory negligence in not removing the barn, which she knew to be dangerously near the track. The jury, however, found that there was no contributory negligence. It appears that the barn was situated about one hundred feet from the track; and one at least of the company’s witnesses testified that it would be “ impossible for a coal burner in perfect repair to throw a spark one hundred feet so as to set a building on fire.” The plaintiff was surely not required to guard her property against fire which would be likely to happen only from an improper use of the engine. As a matter of law we cannot, consequently, affirm that she was guilty of negligence under the circumstances.

On the trial the defendant offered to prove by the witness Dohlman, one of the commissioners who appraised the right of way through the premises, that the owner, Mr. Caswell, met them on the premises, and, in a conversation then had in reference to the barn, claimed that the location of the track, when made, would involve the necessity of moving the barn, and claimed damages on that account; that the commissioners in their award allowed him $600 on that account, which was paid by the company; but that the barn was not moved. This evidence was objected to by the plaintiffs, and excluded by the court. It is now insisted that this ruling was erroneous, and that the evidence was relevant to show that the company had relieved itself from all liability for burning the barn where it then stood. Rut on the other side it is said that the evidence was incompetent, for the reason that the award of the commissioners was a matter of record, and could not be proven by parol; that one of two things was true: either that the commissioners had no right to make such an agreement for the removal of the barn under the provisions of the charter (eh. 75, P. & L. Laws of 1860, and ch. 269, P. & L. Laws of 1869), and had acted outside of their authority in doing so; or that the expense of removing the barn was a proper item to be considered in estimating tbe damages, and should appear on the face of the award itself. It seems to us it would be a most dangerous rule to allow such matters to be proven by parol. The award itself was the best evidence of what it contained; and if $600 were allowed for removing the barn and as a part of the damages, that fact should appear therein. At one time, fencing made necessary by running a railroad through a person’s farm was a proper item to be considered in estimating the damages. Robbins v. the Milwaukee & Horicon Railroad, Co., 6 Wis., 636" court="Wis." date_filed="1858-07-01" href="https://app.midpage.ai/document/robbins-v-milwaukee--horicon-railroad-6597643?utm_source=webapp" opinion_id="6597643">6 Wis., 636. Suppose, while this was the law of the state, a party had brought an action against a company for killing his cattle which escaped from his inclosure adjoining the track through a defective fence, and had proposed to show by parol that the company had agreed to build and keep up such fence, and that this item of damages was not awarded when the land was condemned ? Would it not be a violation of all rules to allow such matters to be proven by paroi ? It seems to us it would be, and that such a rule of evidence would lead to most dangerous results. And yet we cannot see wherein the case supposed differs in principle from the one before us.

Another exception is relied on for a reversal of the judgment, which was taken to the ruling of the court admitting the testimony of Burmeister. lie was asked by the plaintiffs, among other things, whether the railroad company paid him for property which he lost in this fire. He answered, under objection, that it did. On his cross examination, he added: “ I do not say that the railroad company paid for what I lost; they made me a present; they denied all liability, claiming that they did not set the fire, but gave me this money as a present because I was a poor man.” It is very plain that this testimony was irrelevant and should not have been admitted. Still we cannot see that the company could possibly have been prejudiced by its admission. The testimony showed that the company paid the witness for his property, not on the. ground of any acknowledged legal liability to pay him for it, but from motives of generosity and kindness. It would be an impeachment of the intelligence and good sense of the jury to assume that their verdict was affected by such testimony in any way.

This disposes of all the material points made on the argument by the counsel for the company.

By the Oourt. — The judgment of the county court is affirmed.

---

Rehearing

On a motion for a rehearing, John W. Cary, for the appellant, insisted that the testimony of Burmeister, improperly admitted, had been strongly relied upon by plaintiffs’ attorneys in their argument to the jury, was well adapted to influence the jury unfavorably for defendant, and did in fact so influence them; and that whenever improper evidence has been admitted, and the jury were not afterwards directed to disregard it, the presumption is that they were influenced by it, if they have found for the party introducing it. Castleman v. Griffin, 13 Wis., 535" court="Wis." date_filed="1861-04-10" href="https://app.midpage.ai/document/castleman-v-griffin-6598401?utm_source=webapp" opinion_id="6598401">13 Wis., 535; Remington v. Bailey, id., 333; Johanneson v. Borschenius, 35 id., 131; Robbins v. Harvey, 5 Conn., 335" court="Conn." date_filed="1824-07-15" href="https://app.midpage.ai/document/robbins-v-harvey-6573881?utm_source=webapp" opinion_id="6573881">5 Conn., 335. In support of the view that the testimony here in question was improper, and must be supposed to have prejudiced the defendant, counsel cited Tennant v. Hamilton, 7 Cl. & Fin., 122.

W. C. Williams, in reply, contended that a judgment will not be reversed for errors occurring on the trial, where it is clear from the whole record that the verdict and judgment could not properly have been other than they were (Manny v. Glendinning, 15 Wis., 53, and cases there cited); and in particular that there will be no reversal for the improper admission of testimony, if the facts sought to be proven by it were clearly established by other evidence (Spencer v. R. R. Co., 17 Wis., 488, and cases cited in V. & B.’s notes; Roach v. Menomonie, 24 id., 527); and that this case came within these rules.

The motion for a rehearing was denied.