144 Wis. 321 | Wis. | 1911
Lead Opinion
The following opinion was filed October 25, 1910:
The jury found that the fire which destroyed the wood piled on the defendant’s right of way was caused hy sparks emitted from one of the defendant’s passing ■engines. This is assailed upon the ground that the evidence wholly fails to sustain such an inference. It is argued that the evidence shows that the engines in question were without defects and were properly managed while passing through Auhurndale at the time the fire is claimed to have originated from sparks emitted therefrom. No negligence is charged as regards the proper condition and the proper management of the engine. The ground on which liability of defendant is claimed is that it was negligent in allowing this wood to remain on its right of way under the circumstances and conditions shown.
Assuming that such engines were free from defects and were properly managed at the time, does the evidence sustain the inference that the fire originated from a spark emitted therefrom? There is evidence in the case tending to show that engines in operation as these were do emit sparks. It appears that this is a common result from operating locomotive railroad engines. The claim is made, however, that on the occasion in question the discharge of sparks from these engines was so reduced on account of very light work required of them in passing through this station that this danger was practically removed, and that the black smoke of the passenger engine and the shutting off of steam power on the freight ■engine accompanying their passage through the station this day sustain this claim. The evidence on this subject presents
The further claim is made that the evidence is too vague and speculative to support a reasonable inference that a spark from either of the defendant’s engines actually started the fire. The contention is based on the want of direct evidence that sparks were observed; that the fire began burning at a time too remote from the passing of the last train, in view of the highly inflammable condition of the wood where it started; and that other more probable causes were shown to have existed.
We discover no conditions, as shown by the evidence, from which it can be said that another alleged cause was more likely to have caused the fire than an engine spark. The state of the evidence on this subject well justified the jury in rejecting all the other alleged causes as the origin of this fire. The argument that it could not be possible that the fire began to burn so as to be visible at so remote a time even after the first engine passed, under the existing conditions, is not conclusive. It cannot be said that a spark lodged in the material would not lie for some time in a smouldering state before progressing to a state of flames as first observed on the top of the pile of wood. The facts and circumstances shown are such as to make this an appropriate inquiry for the jury to determine in the light of all the evidence bearing on the question. As stated in Abbot v. Gore, 74 Wis. 509, 43 N. W. 365:
“The fact that the engine passed shortly before the fire was discovered ... is some evidence tending to show . . . that the engine did set the fire, notwithstanding it was in good order and properly managed.”
True, no witness testified to having seen sparks from either of these engines lodge at the place where the fire was first ob
Tbe jury found that tbe railroad company was guilty of a want of ordinary care in allowing tbe'wood to remain on its right of way. Tbe court instructed tbe jury that it was tbe company’s duty to provide a piling place for such wood, and that it was not negligence to permit it to be piled where it did when tbe wood was received, but that they must determine whether, in view of all tbe facts and circumstances disclosed by the evidence, allowing it to remain on its right of way near the track and passing trains constituted a want of ordinary care.
Tbe appellant asserts that tbe obligation of tbe defendant to receive this wood and place it near its road for shipment rightfully included reception of it in tbe quantities and at tbe place it did, and that it properly allowed it to remain there under the conditions and circumstances here shown, and that it exercised ordinary care in the conduct of this business up to tbe day of tbe fire. It is undisputed that the defendant as a common carrier was obligated to receive and transport firewood, and that it bad tbe right to conduct such business in tbe manner that ordinarily prudent and careful persons conduct it under tbe same or similar circumstances. Tbe question whether tbe defendant conducted this business in such manner must be resolved in tbe light of tbe facts and circumstances disclosed. If tbe evidence tends to show extraordinary dangers and hazards to tbe property of others from fire incident to tbe way defendant conducted this business, then, in tbe exercise of ordinary care, it was required to exercise a degree of care commensurate with such dangers and hazards. Tbe question then is: Does tbe evidence present a situation from which tbe jury could infer that tbe railroad company was guilty of a want of ordinary care in permitting tbe wood
It is contended that there is a failure of proof that the negligence found was the proximate cause of the destruction of Mrs. Fredericks property. The peril to this property from a burning of the wood was obvious to any person observing the surrounding conditions. We can perceive no reason for saying that this danger was not to be contemplated as a natural and probable result of the negligence found. Morey v. Lake Superior T. & T. Co. 125 Wis. 148, 103 N. W. 271.
The owner of the property destroyed by the fire did not give the notice of claim of damages to her property by the fire as prescribed by sec. 1816b, Stats. (Supp. 1906). The only notices given the railway company within the year from the day the fire occurred, demanding satisfaction for damages to this property on account of such fire, were those of the insurance companies. Sec. 18166 prescribes what the notice shall contain and that it is to be “signed by the party owning such property . . . his agent or attorney.” It is obvious that the object and purpose of this notice is to notify the rail
A strict construction of the language of the statute would require that all notices be signed by the owner of the property destroyed, his agent or attorney. The object and purpose of the statute is evidently to give railroad companies notice of a •claim for damages from locomotive fires, of the person making such claim, and the time and place of fire. We perceive no reason why this purpose is not as fully accomplished when the notice is given by the person holding the claim under an assignment as when given by the original owner of the property. Under such circumstances the statute should receive liberal construction. Considering it in this light, we are led to the conclusion that the rights of the railroad company are fully preserved by a notice conforming to the statute when signed by the assignee or subrogee of the original owner of the property destroyed or by an agent or attorney. The insurance companies stood in this relation to the owner of the property. Their right to maintain action against railroad companies for wrongfully causing a loss, upon payment of the loss to the owner, has been repeatedly affirmed. • Sims v. Mutual F. Ins. Co. 101 Wis. 586, 77 N. W. 908, and cases cited. This results in giving them the right to take the necessary steps to enforce the claim against the company for its wrongful destruction of the property insured, and a notice signed by their authority fulfils the calls of the statute. There is no dispute as to the giving of such notice within the limits of the time prescribed. It must be held that the statute has been complied with.
The exceptions to rulings as to the admission and rejection
The exception to admission of the evidence of the witness Connor pertains to the failure of the railroad company to furnish cars for shipping the wood. The object of this evidence was plainly indicated by the questions propounded; yet appellant’s counsel permitted the witness to be examined on the subject without objection and then moved to strike out the testimony. The court properly ruled that the objection came too late, and therefore refused to strike out the evidence. Furthermore, we discover no prejudice resulting from its admission had the objection been timely. Nor do we discover any prejudicial effect in refusing the instructions requested,, that there was no evidence on the subject of not furnishing cars when demanded.
Error is assigned that the court erroneously permitted the jury, under its instructions, to find that the fire was set by engines other than the two referred to in the evidence. This is negatived by the direction given them that they were to consider only such engines as the evidence showed passed the piles of wood.
It is urged that the remarks of counsel pertaining to the production of the notices served on appellant; his conduct in propounding improper inquiries to the appellant’s claim-agent and section foreman; his assertion that engines generally emitted sparks and that defendant should have piled its wood where it thereafter piled it, namely, a mile or two distant, all operated to prejudice the jury to an extent so as to-render them incapable of arriving at a just verdict. We are not persuaded that counsel’s conduct had such prejudicial effects, and do not think that the conclusion of the trial court should be disturbed.
The denials of the applications for change of venue are abundantly justified by the record. Trial courts are vested with a large discretion in passing upon such applications.
Upon defendant’s motion for a review of the taxation of costs by the clerk, the court modified the clerk’s action by striking out certain items taxed, and refused to modify the bill allowed as to the following items:
$2.88 for notices under sec. 1816h, Stats. (Supp. 1906: Laws of 1899, ch. 301). This was proper under the third paragraph of sec. 2921.
$36.90, sheriff’s fees for serving summons. Appellant contends the charge should be itemized to authorize its allowance. There is no affirmative showing that the item is excessively incorrect. Under Jones v. Foster, 67 Wis. 296, 313, 30 N. W. 697, the court properly allowed this item.
$35.40 for stenographer’s fees in taking a deposition before a justice of the peace. Upon objection to this item the bill was amended by changing the charge so as to make it a fee of the justice. The item then equaled the twelve cents per folio.-allowed the justice. This item as finally charged was the correct amount to which the justice was entitled.
Certain witness fees allowed by the clerk were held improper by the court because such witnesses were allowed fees for attendance both at the taking of their depositions and also at the trial. The court refused to allow fees for their attendance while their depositions were taken, and allowed a per diem and fees for travel for attending court during the trial of the cause. This was proper and correct.
We find no reversible error in the record.
By the Court. — Judgment affirmed.
Dissenting Opinion
(dissenting). It is undisputed that the wood burned in this instance was a commercial article piled for
There is some very indefinite and uncertain testimony in the ease to the effect that more of the wood would have been shipped previous to the time of the fire had all the cars ordered been furnished. There is no pretense that all or any ■considerable portion of it would have been moved had the cars demanded been supplied, and there is absolutely no evidence in the case to sustain a claim that the failure to furnish cars was the proximate cause of the damage which plaintiffs seek to recover in this case, and no such finding is made. We have before us a situation where the defendant furnished a shipper piling ground for wood on its right of way which the shipper had not attempted to move at the time of the fire. 'The wood had been delivered on the right of way during the winter of 1905-6, and up to and during the month of April, 1906, the fire occurring on May 18.
The importance of this case is not measured by the amount involved. Indeed its consequences may and probably will be far reaching. It is sometimes said that precedents are of little value in negligence cases, because it seldom happens that two cases are alike in their facts. The statement is more nearly correct as applied to personal injury actions than to ■others where recovery is sought on the ground of negligence, and yet there is hardly an assignment of causes disposed of in this court where former decisions are not cited in personal injury cases as being decisive on questions of negligence or contributory negligence.
To my mind the case presents no situation that is either ■extraordinary or unusual. On the contrary, it presents one that is common and usual in the timber-producing section of
The tonnage in raw forest products in Wisconsin is very great. The material is very bulky, and much of it must be handled as-economically as possible to have any margin of
It may be that the methods heretofore in vogue in carrying ■on business in certain portions of the state have been reckless and negligent and that it is time to call a halt. Certainly a ■change in that method will entail a great deal of loss, which will bear heavily on the pioneer farmers and small contractors who can* ill afford it. We have various statutes requiring carriers to furnish reasonably adequate shipping facilities. Storage room for timber products along a railway is almost an indispensable facility in the shipment of timber products. In this connection reference is made to secs. 1797 — 3, 1797 — 9, 1798, 1800, 1801, 1802, 1802a, and 1831a, Stats. It seems to me that the decision places the railway companies in the position where they must choose between the alternative of receiving and storing forest products and paying all damages that may result from fire that is communicated therefrom during dry weather, whenever in the opinion of a jury the material is' as combustible as that piled on the right of way in this case, or else of refusing to permit such material to be piled upon its right of way unless it has positive assurances that the same will be shipped before the advent of dry weather
Dangerous acts are not necessarily negligent ones. If so,, the use of steam threshers would create a liability every time a straw stack was set on fire and the fire was communicated to adjacent property. One who employs the element df fire to-generate steam, or under any other circumstances which render it especially dangerous to others, is held to the exercise of' ordinary care only. Read v. Morse, 34 Wis. 315. And it is held that the true test of the duty of a sawmill owner in regard to preventing the escape of sparks is the use of such appliances as are usually used by men of ordinary care and' prudence generally engaged in like business under like circumstances. Rylander v. Laursen, 124 Wis. 2, 102 N. W. 341, and cases cited. In that case recovery was sought against a sawmill owner by an adjacent property holder1 whose logs and standing timber were burned because of sparks emitted from the smokestack of defendant’s sawmill. It-seems to me that there was no evidence showing want of ordinary care in this case, and that it is a matter of common knowledge among those familiar with conditions and the manner in which business is carried on in the wood-producing section of the state that there was no want of ordinary care.
A motion for a rehearing was denied January 10, 1911..
