Ellison v. Chicago & Northwestern Railway Co.

143 Wis. 603 | Wis. | 1910

Winslow, C. J.

There are but two claims made on this appeal: first, that there was no evidence to sustain the finding that the fire started on the defendant’s right of way, and, secondj that the damages found are excessive.

As to the first claim, it must be admitted that the evidence is not very satisfactory. There were but two witnesses for the plaintiff who saw the fire at or about the time of its inception, viz., Mrs. Verhayen, a woman who lived upon the adjoining farm, and her son, Adrian. Mrs. Verhayen testified that she was hanging out clothes about two or three city blocks distant when the freight train went by and immediately she saw smoke arising in several places on Ellison’s land, and perhaps some on the track also; that she did not go to the spot, but called her son from the middle of a forty-acre field. The son testified that when he arrived at the spot there was quite a big-piece burned on the railroad side and quite a big piece on Ellison’s side, burning about as much on one side of the fence as on the other. Later he testified that it was burning in two, three, or four different places, some on Ellison’s land and some on the railroad land, but this latter testimony might well be construed as meaning, not that there were several independent fires, but that there were several places where the fire was fiercely burning, though all might be more or less, closely connected together.

The circuit judge, who heard the testimony and who had a. much better opportunity for knowing what the witnesses really meant by their somewhat contradictory testimony, held, when this same question was presented and argued before him, that notwithstanding the unsatisfactory character of the evidence the question was fairly one for the jury, and we do not feel that the contrary view is so clear that we would be justified in reversing his conclusion.

It may be said further that the wind was in the right direction to carry the sparks as claimed, and that the appearance of' the ground afterwards tended to confirm the idea that the fire started from a spot on the right of way and spread out as it swept before the wind into and across the plaintiff’s premises.

The damages found were certainly large, but there was evidence which fully supported the jury’s finding.

By the Court. — Judgment affirmed.

BaKNes, J., took no part.