19 N.W. 549 (Mich. 1884), Alpern v. Churchill

Citation:19 N.W. 549, 53 Mich. 607
Opinion Judge:COOLEY, C.J.
Party Name:ALPERN v. CHURCHILL and others.
Attorney:Turnbull & Dafoe, for plaintiff and appellant. Clayberg & Sleater, for defendants.
Case Date:June 04, 1884
Court:Supreme Court of Michigan

Page 549

19 N.W. 549 (Mich. 1884)

53 Mich. 607



CHURCHILL and others.

Supreme Court of Michigan

June 4, 1884

Negligence must be affirmatively proved; but, like other facts, it may be shown by irresistible inference from circumstances.

Where, in an action for injury caused by sparks from a burner, there was evidence that warranted the inference that the burner was in a defective condition, it was proper to show that when a change had been made after the damage was done, the dangerous emission of sparks ceased.

Negligence implies fault, and cannot be predicated of a lawful and customary use of one's own premises.

Contributory negligence cannot be predicated of the erection, in a customary, lawful, and proper manner, of buildings constructed of the usual material upon the owner's premises, even though there are establishments in the neighborhood from which there is risk of fire or damage. And the owner of such buildings is not bound to incur the expense of providing his buildings with extra safeguards.

Error to Alpena.

Turnbull & Dafoe, for plaintiff and appellant.

Clayberg & Sleater, for defendants.


Action on the case for a negligent injury by fire, alleged to have been communicated from defendants' premises.

It seems that in 1877, defendants, being the owners and in [53 Mich. 608] possession of certain premises in the city of Alpena, and operating a steam saw-mill thereon, for the purpose of consuming the refuse matter arising from the manufacture of lumber, such as slabs, saw-dust, etc., erected upon such premises a refuse burner, so called. Its general dimensions and description seems to be as follows: The base is cylindrical in form, and 22 feet in diameter inside. This diameter continues up some 41 feet from the ground. From this point up 38 feet it is conical in form, tapering from a diameter of 22 feet to a diameter of 8 feet. From this point it again assumes a cylindrical shape 8 feet in diameter for some 18 feet higher. All this is made of iron. Surmounting this structure is a wire bonnet or spark-arrester, constructed of woven wire, with a 4X4 mesh, or 16 holes to the square inch. This spark-catcher continues the diameter of eight feet for about eight feet higher, when it terminates in a cone, the apex of which is about two feet higher than the sides. There are no holes in the top, except the mesh as above referred to, the conical bonnet covering the entire structure. The apertures in the bonnet are about one-eighth

Page 550

and one-sixteenth of an inch square. The sparks which escape are freed at an altitude of about 105 to 107 feet from the ground.

Somewhat north-east of this refuse-burner, and at from 300 to 350 feet distant therefrom, plaintiff's premises were situated, and they are described by plaintiff's husband about as follows: They consisted of a boarding-house, a packing-house, and an ice-house. The frontage was upon Thunder Bay river, and they extended back towards Water street, and their southerly line, if produced, would have intersected Water street from one to two hundred feet north of a line drawn from the northerly side of the refuse-burner. The boarding-house, which was built in 1879, was the most northerly of the buildings, and furthest from the burner. Its dimensions were 50 feet long by 20 feet wide, and two stories high. It was a frame building, clapboarded and painted outside, ceiled inside, and having a shingle roof. Next adjoining and nearer the burner, and also facing the river, [53 Mich. 609] was the packing-house. This was built in 1881. It was 70 feet long by 20 feet wide, having 22-feet posts, making it two and one-half stories high; the lower story being used for packing fish, the second story being used for stowing nets, seaming on nets, and doing work connected with nets; the upper floor being used as a store-room for everything connected with the fishing business. It was a wooden building, unpainted, and having a shingled roof. Commencing immediately in the rear of this packing-house, and extending...

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