Martin v. Bishop

59 Wis. 417 | Wis. | 1884

Lyon, J.

The fifth finding in the special verdict is, in substance, that the fire was.communicated, and the plaintiff’s grain destroyed, by reason of the want of ordinary care by the defendants, which was the proximate cause of the loss. The eighteenth finding reasserts the negligence of the defendants. The use of the term “ ordinary negligence,” in the jvfth question submitted to the jury seems inaccurate; but it is clear from the charge of the learned circuit judge to the jury that he intendéd by that term “ want of ordinary care,” and it is hardly possible that the jury could have been misled by the inaccuracy.

The jury did not find the particular act or omission of the defendants upon which the findings that they were negligent were predicated. An examination of the testimony contained in the bill of exceptions (which is certified to con. tain all the testimony given on the trial) fails to disclose any evidence tending to show any negligence on their part other than the act of starting their engine when they did. The machine was properly constructed and was provided with all appliances to prevent the escape of fire which could reasonably be required; hence, the case turns upon the question whether, under the circumstances, it was negligence to start the engine when it was started. The grain was burned in August. The undisputed evidence is that the weather was hot and dry; there was a very high wind blowing from the south at the time, and the engine was set about sixty-five feet south, or perhaps a little southwest of the stacks. The fire caught in the stacks within a few seconds' — -not more than a minute or a minute and a half — after the engine was started. It seems to us that the jury were abundantly justified in finding that it was negligence to start the engine under such circumstances. The best constructed engine emits some fire, and to put one in operation when standing within four rods of half a dozen stacks of grain, and on the ■windward side thereof, on a hot, dry day, when the wind was blowing a gale, and when any fire emitted from it would almost inevitably be carried into the stacks or loose straw about them, is, it seems to us, not only a want oí ordinary care, but very gross negligence. On the evidence, therefore, we cannot disturb the findings that the defendants were negligent in starting their engine when they did.

Eut we are entirely unable to perceive on what grounds the jurjr acquitted the plaintiff of contributory negligence, lie was present when the machine was set and started, and when the fire caught. He furnished the men to deliver the sheaves at the machine and to remove the straw and grain, and these men were at their posts in the discharge of their respective duties when the fire broke out. These facts, although not specially found, are undisputed. The jury found that the plaintiff knew it was dangerous to thresh on that day, but did not forbid the defendants to proceed with the work, and that the machine was set pursuant to his directions. Knowing the peril (which any man of ordinary sense, being present, must have seen at a glance), it was the duty of the plaintiff to refuse to proceed with the threshing at that time, or at least to have directed that the machiñe be located on the other side of the stacks. He did neither, but allowed the threshing to proceed and his servants to aid therein. He was just as clearly guilty of negligence as were the defendants, and a finding that he was not is but an erroneous conclusion of law from the established facts in the case. Hogan v. C., M. & St. P. R’y Co., ante, p. 139.

By the Court. — The judgment is reversed, and the cause will be remanded for a new trial.