| Wis. | Apr 8, 1890
The court submitted to the jury the questions whether engine No. 512, which set the fire that spread over plaintiff’s marsh, was properly constructed and in proper repair, and whether the right of way, at the time of the fire, at the point where it commenced, was reasonably clear of combustible materials. The court also instructed the jury, on the testimony hereinafter stated, that the plaintiff Arthur G. Mills, who was in the vicinity of the fire when it started, was negligent in not going to the fire with his men and making an effort to extinguish it or prevent its spreading upon the plaintiff’s marsh, as soon as he should have done, but submitted to the jury the question whether, had he done so promptly, he could have prevented the injury complained of. The submission of these questions to
1. When engine No. 512 passed the point where the fire commenced, Arthur 0. Mills was at work with his men about three fourths of a mile distant therefrom. About fifteen minutes later he saw smoke rising from the right of way at that point. With two of his men he immediately went to the railroad near their boarding-house to get a better view of the fire. The three then went into the boarding-house, hastily ate their dinner, and went on a railroad velocipede to the place of the fire. They found the fire had crossed a ditch which the plaintiffs had constructed along the line of the railroad, about four rods distant therefrom, to prevent the spread of fire from the right of way, which ditch usually contained water. It was then a period of drought, and there was no water in the ditch or vicinity. They only had shovels with them with which to resist the spread of the fire. The soil was peat, covered with moss and grass, all of which was very dry and highly inflammable. All of these men had theretofore had much experience in fighting fires, and they at once decided, when they reached the fire, that, with the appliances at their command, it would be useless to attempt to stay its progress. They did not make the attempt. When they went for their dinner the wind was blowing somewhat strong!}^ from the wrest,
Because of this delay of ten or fifteen minutes, the court held, as matter of law, that Arthur G. Mills was guilty of negligence which would defeat the action, unless the jury were satisfied that he and his men could not have prevented the spread of the fire upon the marsh had they reached there as soon as possible.
There is other testimony bearing upon .the question of such negligence, which need not be stated here, but which, taken in connection with the testimony above stated, leads us to doubt whether the court was justified in taking that question from the jury. But the ruling is in favor of the defendant, and, if erroneous, does not affect this appeal.
The question here is whether it can justly be said that the failure of Arthur 0. Mills to get to the fire earlier, and to attempt to arrest its progress, is to be imputed to the plaintiffs as negligence which will defeat this action, although the jury might find that, had be done so, he could not have prevented the fire from running over the marsh. Following the great weight of authority both here and in England, we must determine this question in the negative. If it is made to appear that the marsh would have been burned just the same had Arthur 0. Mills and his men reached the place of the fire at the earliest possible moment, and had then made every exertion to stay the progress of the fire, such want of promptness and effort will not defeat the action. Cooley on Torts (1st ed.), 674; (2d ed.), 812, and' numerous cases there cited.
There was abundant testimony tending to show that such promptness and effort would have been entirely unavailing
2. As to the condition of engine No. 512,-the testimony tended to show that the bottom of the ash-pan of that engine was too short, the effect thereof being to allow the damper to hang too nearly perpendicular; thus rendering it liable to swing open when the engine was in motion. This facilitated the dropping of coals of fire falling against the damper. Also, that to prevent the escape of fire the bottom of the ash-pan should have been turned up at. the end so as to hold the damper at a proper slope when it rested upon the ash-pan, and that the ash-pan of engine No. 512 was not so constructed. It was further proved that this engine, No. 512, set three other fires while running a little more than one mile from the place where it set the fire which burned over plaintiffs’ marsh. The court held it conclusively proved that the engine was properly operated. Such being the fact, it is a very significant circumstance, bearing upon the question of the condition of the engine, that it set four fires while running so short a distance. In view of the foregoing and other testimony in the case, we conclude that the question was properly submitted to the jury whether the engine was or was not in a reasonably safe condition.
3. It is only necessary to say, concerning the remaining error assigned, that there was sufficient evidence concerning the condition of the right of way to justify the court in submitting to the jury the question whether, at the time of the fire, it was in a reasonably safe and proper condition in respect to combustible materials upon it.
The foregoing views dispose of all the alleged errors adversely to the defendant. The judgment of the circuit court must therefore be affirmed.
By the Court.— Judgment affirmed.