Jackson v. Wisconsin Telephone Co.

88 Wis. 243 | Wis. | 1894

Winslow, J.

It was strenuously and. ably argued by tbe appellant’s counsel that/tbe evidence did not show that the negligent act of defendant was tbe proximate cause of the burning of plaintiff’s barn.' Tbe rule is well settled in this state that, in order to render a negligent act tbe proximate cause of an injury, it must appear “ that tbe injury was the natural and probable consequence of the negligence or wrongful act, and that it ought to have been foreseen in the light of the attending circumstances.” Atkinson v. Goodrich Transp. Co. 60 Wis. 141, 156; Marvin v. C., M. & St. P. R. Co. 79 Wis. 140. The jury found all the elements necessary to constitute the negligent act of the defendant the proximate cause of the burning of the barn within this rule, and the question is whether the evidence justifies such finding. It is said that the striking of a building by lightning is a very infrequent occurrence, and that it could not be reasonably anticipated by any one. ;'It is true that the number of buildings which are struck by lightning, as compared with the whole number of buildings in any given locality, is very small; but this fact by no means .seems to us to be the final or controlling test of the question of probability. In this case there was a building situated upon a high plateau from eighty to ninety feet above the level of the surrounding country, with a flagpole upon the roof about twenty-five feet in height. Now, there are some facts of common knowledge known to every reasonable person v7ko has passed the age of childhood. Among these facts are that in this latitude there are at certain seasons of the year frequent and violent thunderstorms; that at such times the clouds are heavily charged with electricity, which constantly finds its way to the earth in what we call strokes of .lightning; that these lightning strokes, in the great majority of cases, strike prominent objects, such as trees, poles, and high buildings, and follow them to the ground; that fire is frequently the result of such strokes. These facts are well known to all persons, and no proof of them by expert evidence is necessary. * Can we say, as matter of law, in view of these well-known facts, that it was entirely improbable that a building situated, as Floral Hall was, upon the highest ground in the vicinity, with a flagpole upon it, should be struck by a discharge of lightning, simply because many buildings in such situations escape the stroke for years? ¥e think not. -

But it is said that it was simply a matter of conjecture whether the bolt which struck Floral Hall and shattered the flagpole was the bolt which set the fire, or whether the barn was fired by an independent stroke of lightning descending upon the barn at or about the same time that Floral Hall was struck. In considering this question, reference to the evidence is necessary. The evidence seems very conclusive that the barn was fired by a stroke of lightning, and that Floral Hall was struck by lightning and its flagpole shattered a very few minutes •— perhaps only seconds— before the blaze broke out on the roof of the barn. These two facts are not open to doubt under the evidence. There were two witnesses sleeping in buildings on the fair grounds within a few hundred feet of the hall. Both testify that they were awake and saw the flash of lightning, and that it was right in the direction of Floral Hall. They immediately went out, found the barn burning and the flagpole on Floral Hall shattered, while the flagpole on the barn was uninjured. These witnesses, as well as several others who claim to have seen the flash, say that there was but one flash, one report, one “ straight streak of lightning,” “like a streak of hot iron.” There was also evidence that the flagpole was only shattered down to about the place where the wire leading to the barn was fastened, and that the ground wire, which seems to have been attached to the flagpole just below the barn wire, was burned for a distance of four or five feet from the pole. No damage was done to Floral Hall beyond the shattering of the pole. If these facts were all true, it would seem that they pointed pretty satisfactorily to the conclusion that the bolt which struck Floral Hall was the same bolt which fired the barn. Certainly a verdict to that effect, based on evidence establishing these facts, could not be said to be based on conjecture.

It is, however, argued that it is entirely improbable, if not well-nigh impossible, that a bolt of lightning striking one building would be conducted by a telephone wire over a span of 300 feet to another building, at least in sufficient quantity to fire the second building. This raises a scientific question, necessarily depending largely upon the opinions of expert witnesses. A considerable number of such witnesses were examined on both sides. The experts called by the plaintiff testified that if the loose end of the wire was left resting on the roof of the barn, and the roof and sides were wet with rain, the wire and wet barn would form a relatively good conductor of electricity; that such a wire would carry sufficient electricity to start a fire, and would form, under the circumstances, a good path to the ground; that a part, at least, of the bolt would probably follow this path to the ground; and that all these facts have been known for years, and the danger to the barn resulting therefrom was reasonably to be anticipated. On the other hand, an equal number of experts upon the other side were of opinion that it would be very improbable, if not impossible, for such a wire, under the circumstances, to carry sufficient lightning to set the barn on fire, and that the lightning would undoubtedly seek some shorter path to the earth. We cannot undertake to compare and decide which class of experts were the best qualified to speak au-tkoritatively upon this scientific question. They all qualified themselves so as to.make their testimony admissible as expert evidence. Nor can we undertake to decide this question of science ourselves. It was properly a question for the jury after having heard the circumstances of the case and the opinions of the experts, and we cannot say that the jury have decided wrongly upon the question.

The further argument is made that the stroke of lightning was the “act of God,” for which no one is responsible. Certainly a stroke of lightning is an “ act of God; ” but that is not the question here presented, or rather another element — i. e. the negligence of man — is added to the question, which materially alters its scope. If I, owning a high mast or building, which I know is so situated as to be very likely to be struck by lightning, construct an attractive path for the lightning to my neighbor’s roof, so that his house is destroyed by a bolt which strikes my mast or building, shall I escape liability for my negligent or wrongful act by pleading that the lightning was the act of God? Certainly not. I invited the stroke of one of the most destructive powers of nature, and negligently turned its course to my neighbor’s property. The principle is the same as that involved in the case of Borchardt v. Wausau Boom Co. 54 Wis. 107. The lightning stroke is in no greater degree the act of God than the usual freshets occurring in a river.

Our conclusion is that the court properly refused to grant a nonsuit, and also properly refused to direct a verdict for the defendant.

Two instructions were asked by the defendant and refused by the court, as follows: “ No default, negligence, or want of care on the part of the defendant can be presumed, but it is for the plaintiff to satisfy (you) by a fair preponderance of the credible testimony that the defendant was negligent, and, unless the evidence shall satisfy you, you must find that there was no negligence on the defendant’s part.” “ If, in your opinion, any witness has testified falsely as to any one material fact, then you are at liberty to disregard any other uncorroborated testimony given by such witness.” As to the first of these instructions, it was substantially given by the court in the general charge in far stronger terms than it was asked by the appellant. Substantially the same remarks apply to the second instruction asked. The jury were most fully and carefully instructed as to their duty in weighing and judging of the credibility of witnesses, and, though the language of the instruction was not given, it is not seen how the instruction asked could have added anything to the unusually careful and clear cautions which were given them by the court.

A question is raised as to the form of certain questions put to the plaintiff’s experts. We have examined them and find no error.

The respondent’s brief contains 147 pages. There is no justification for so long a brief in this case. It is an abuse of the privilege of counsel, and a hindrance, rather than an aid, to the court. All the questions in the case could be fully discussed in less than one third the space. In taxing costs the clerk will only allow the respondent for his brief the expense of printing forty pages.

By the Court.— Judgment affirmed.

Newman, J.

The cause of damages is proximate only when it might reasonably have been expected by a man of ordinary intelligence and prudence that such damages would result from that cause. Atkinson v. Goodrich Transp. Co. 60 Wis. 141. The damages, as a.consequence of the negligent act or omission, must be both natural and probable. Barton v. Pepin Co. Agr. Society, 83 Wis. 19. It cannot be said of any particular building that it is probable that it will be struck by lightning. The chances are very largely against it. It could not have been foreseen as likely to happen that either Floral Hall or the plaintiff’s barn would be struck by lightning. That might be, in the course of nature, but could not be anticipated as probable. The neglect of the defendant to remove the wire did not increase the danger or probability that either building, would be struck. At most, it only rendered it possible that, in case either was struck, fire might be communicated to the other. It could not be the cause of either building being struck. It was a condition, rather than the cause, of the damages. If a cause at all, it was a remote cause. /

PinNey, J. I concur in the foregoing opinion by Mr. Justice NewmaN.