Montague v. Minneapolis, St. Paul & Sault Ste. Marie Railway Co.

96 Wis. 633 | Wis. | 1897

Winslow, J.

There is one crucial and important question presented upon this appeal, and that is whether there was •evidence ivhich sufficiently identified the fire which started on the defendant’s right of way July 7th as the same fire which destroyed the plaintiff’s logging camp three weeks afterwards. The jury were not at liberty to arrive at the result by guess or probable conjecture, but must have substantive evidence to base their verdict upon.

The plaintiff’s camp was about four miles southeast from the place where the fire upon the defendant’s right of way started. As appears from the statement of the case, this last-named fire started July 7th, and it was not until three weeks later that the plaintiff’s camp was destroyed. Thus it is evident that it was not a sweeping, rapidly advancing fire, which could be easiiy traced as it swept before the wind, but that it must have been a fire which went slowly, and languished and nearly or quite died' out at times. Such a fire must necessarily be carefully traced by the evidence. •One witness perhaps may not be able to trace it all of the' way, but certainly it must be traced and identified as the same continuing fire, either by witnesses who saw it, or by facts and circumstances equally persuasive, or’by both witnesses and circumstances. The evidence all shows that there were many fires burning in the woods in this vicinity at about this time. The country was very dry, and was “ full of fire,” as some of the witnesses express it. This condition of things renders it all the more necessary that the right-of-way fire of July 7th should be identified and traced by tangible evidence into the sweeping fire of July 28th. Examination of the record shows that there is sufficient evidence tending to show that the right-of-way fire traveled south through parts of sections 8 and 9, and then smouldered; also that a fire was found burning about July 23d in about the center of section 17, which traveled eastward, and may have been the fire which destroyed the plaintiff’s camp; but there is a hiatus between these two fires both in time and in space which the evidence does not fill.

This hiatus was attenuated to be filled by the witness Miller, who testified that he saw the right-of-way fire near the. line between sections 8 and 9 on the 9th of July, and that that fire went south and was in section 17 on the 23d day of July. Upon cross-examination, however, the witness admitted that he did not trace the fire from section 9 into section 17; that he assumed the fact without tracing; that he was up north of Brantwood most of the time between the 9th and the 21st of July, and was not down in section 9 between those dates, but was miles away. When these admissions were made, the appellant moved to strike out Miller’s testimony so far as it undertakes to show that the fire in section 9 on the 9 th of July crossed into section 17 on the 21st of July, but the motion was denied, and exception taken. Certainly the motion should have been granted. Miller’sadmissions on cross-examination demonstrated that his testimony as to the identity of the two fires was mere assumption and conjecture, which ought to have been withdrawn from the jury.

With this evidence out of the case, there is certainly no other, evidence in the record which identifies the two fires as the same continuous fire.

By the Court.— Judgment reversed, and action remanded, for a new trial.