72 Wis. 331 | Wis. | 1888
This action is brought to recover the amount claimed to be due the plaintiffs by reason of the burning of certain property through the alleged negligence of the defendant company. Some of the property destroyed was a general stock of merchandise such as is usually kept in country stores, consisting of a large number of items, and quite a number of other kinds of property. The defendant claimed that the trial of the issues would involve the examination of a long account; and moved that the cause be referred to a referee to hear and decide the same. The court below held that the action could not be referred without the written consent of the parties, and denied the-motion. This ruling is assigned for error, but we think the court was clearly right in the view it took of the statute. The action is plainly one in tort. The vital and substantial issue is the alleged negligence of the defendant which caused the injury complained of. Such an issue is peculiarly one for a jury; and we do not think that the legislature intended there should be a compulsory reference to try such an issue, even if it had the power to deprive a party of the right of submitting it to a juiy. The constitution declares that the right of trial by jury shall remain inviolate; that is, it should remain as when the constitution was adopted. Since the decision in Norton v. Rooker, 1 Pin. 195, which arose under the territorial statute, it has not been supposed there could be a compulsory reference in an action sounding purely in-tort. Counsel have cited the decisions of this court where the question of compulsory reference has been discussed, but there is no decision which would sanction it in the case before us. In Littlejohn v. Regents, 71 Wis. 437, one of the most recent cases, the question is alluded to, whether there could be a compulsory inference in an action of tort, but the point was left undecided. Under the circumstances, nothing but the clearest and most unequivocal language in the statute would warrant the court in directing a compul
The view which we have taken of the case relieves us from the necessity of nothing in detail all the errors assigned; but we cannot withhold the remark that the practice of the learned counsel for the defendant, in assigning seventj^-five distinct errors, is one not to be commended. Such an assignment of errors really affords no useful information to the opposite counsel of the points which will ¡be relied on for a reversal of the judgment. Counsel might as well make a general reference to the state library for authorities to sustain a proposition of law. Not without reason do the plaintiffs’ counsel insist that the practice adopted in that regard is vicious and one which should not be tolerated.
Now, before coming to the error which we think must work a reversal of the judgment, it will be necessary to state a few facts in order to make our remarks intelligible. The plaintiffs were operating a steam saw-mill and stave-factory at Birnamwood, a small station on the line of defendant’s road. The road at that point runs about north and south. The mill-yard was on the west side of the track, and was made-ground; that is, it was made of slabs, sawdust, and other refuse material from the mill. South of the mill, and almost at right angles with the track, was a public highway, leading into the country, and known as the “ State Road.” At the station there were two side-tracks, one upon the east and the other upon the west side of the main track.
One of the most material and important witnesses of the plaintiffs was Mr. Nash, who was about the mill that day having lumber sawed, and who was one of the first to discover the fire. He testified that when he heard the alarm he was near the edger in the mill, facing the north; that he turned directly around, and saw a volume of smoke coming out of the nearest lumber pile to the mill. This pile of lumber was
The case is a very close one upon the evidence. The cause or origin of the fire is a matter left in great uncertainty. The jury found that it originated from sparks or coals escaping from engine No. 88, on the west side-trade in close proximity to the lumber piles and other combustible material, and that the defendant’s negligence caused the fire. We believe Mr. Nash was the only witness who testified to seeing coals and smoking cinders at that place. Presumably his testimony had great, perhaps decisive, weight with the jury. Anything calculated to discredit or impeach his testimony was very important and material to the issue. On the other side it is said that the finding that the defendant was guilty of negligence, and that coals and cinders escaped from engine No. 88, is entirely unsupported by the evidence. But we think there was testimony from which
The charge of the circuit court is criticised on some points, but we shall not dwell upon it, because the proof may be different on another trial and call for a different charge applicable to the facts. We observe that what is said in the charge about the jury’s considering whether or not combustible material was tying along and near the track of the railroad was evidently intended to be applicable to the degree of care which the servants of the company were bound to -exercise, in view of that condition of things,
By the Court.— The judgment of the circuit court is reversed, and a new trial awarded.