Hoyt v. Jeffers

• Citation: 30 Mich. 181
• Court: Supreme Court of Michigan
• Decision Date: 07 October 1874
• Parties: Jesse Hoyt v. John Jeffers. [1]

30 Mich. 181

Jesse Hoyt v. John Jeffers. ^[1]

Supreme Court of Michigan

October 7, 1874

Heard July 10, 1874

Error to Saginaw Circuit.

Judgment affirmed, with costs.

John J Wheeler and Pond & Brown, for plaintiff in error.

I. M & H. P. Smith and Gaylord & Hanchett, for defendant in error.

OPINION

Christiancy J.:

Jeffers brought his action against Hoyt in the circuit court for the county of Saginaw.

The declaration sets forth, substantially, in the first count, that plaintiff, on the 17th August, 1870, being the owner of lot 1, block 19, Hoyt's plat of the city of East Saginaw, together with the frame buildings thereon situate (which the evidence shows to have been a hotel called the Sherman House, a barn, shed and wash-house, on the same lot, used with the hotel), of the value of ten thousand dollars; and the defendant being the owner, and running and operating a steam saw-mill, situated on block four of the same plat, distant about three hundred feet southwesterly from plaintiff's property, he (the defendant), in running and operating the steam saw-mill, used large fires, which emitted and gave off large quantities of sparks of fire through the chimney; that it was the duty of defendant to have used upon said chimney a sparkcatcher, which would have prevented the escape of such sparks, or in some other way to have prevented their escape, so that the fire would not be thereby communicated to the property of the plaintiff; yet the defendant, knowing the premises, and that sparks of fire had been repeatedly thrown from said mill upon the property of the plaintiff, and that his buildings had been repeatedly set on fire by such sparks, omitted to do his duty in that behalf, and negligently suffered the top of the chimney of his said mill to remain open, without a spark-catcher thereon, and without using any adequate means to prevent the escape of sparks from the chimney; and while defendant, his agents and servants, were running and operating the mill, to-wit, etc., sparks of fire from the chimney of said mill were thrown upon the plaintiff's buildings, and said buildings were thereby set on fire and totally consumed, to plaintiff's damage, etc.

The second count more particularly describes the plaintiff's buildings, and gives their distance from the mill, as, "to wit: two hundred feet," and, apparently as a ground of special damages, states their rental value, and alleges that in running the mill large quantities of sparks were thrown off; and unless restrained by spark-catchers or some other means, would be carried by the wind from two hundred to one thousand feet in the direction of the wind, and there thrown down and deposited in a live and incandescent condition upon the buildings and other property there situated, thereby endangering the destruction of such property by fire; alleges the duty of the defendant to prevent such dangerous escape of sparks; avers defendant's knowledge of this, and that plaintiff's buildings had in this manner been repeatedly set on fire, the omission of defendant to perform the duty alleged, and his neglect to use reasonable and necessary precautions and means to prevent the danger, and that plaintiff's buildings were burned and destroyed by fire, by the sparks and fire thrown from said chimney, in the manner in this count described.

The third count, after describing the property of plaintiff, the situation and use of defendant's mill, its emission of sparks, etc., and defendant's knowledge of the danger (which is alleged to have existed for a long time prior to the fire complained of), without expressly averring the duty of defendant, alleges that "by defendant's operating and using said mill with such fires in a careless and negligent manner, and without taking proper and reasonable means and precautions to prevent such danger and exposure to said buildings, and to prevent burning materials and sparks of fire from escaping from said mill and falling on said buildings, the said hotel and other buildings of plaintiff were set on fire by said burning materials and sparks escaping from said mill, · · and destroyed, and the plaintiff avers that said damage and destruction was caused by the negligence of the defendant in operating said mill and by his neglect to take such precautions as aforesaid."

The plea was the general issue. The case was tried before a jury, who returned a verdict for the plaintiff at five thousand five hundred and thirty-three dollars and thirty-three cents, and the defendant brings the case to this court upon writ of error and bill of exceptions.

The mill appears to have been built in 1854, and the plaintiff's hotel the same year; which was commenced or finished first does not conclusively appear, and from the evidence the jury might have found the fact either way. The defendant seems to have purchased the mill some time after it was built; and it was not disputed that the mill was owned and run by him from about 1863 or 1864 down to the time of the fire, though he personally resided in New York.

The chimney was a square brick chimney, originally about seventy feet high, but in the spring of 1870 about twelve or twelve and one-half feet were added to the height; but neither before nor after the addition did it have any spark-catcher on it, nor what is called a butterfly value, with wire netting, nor a hole behind the boiler for the sparks to fall into, so far as the evidence shows. The Sherman House was situated about two hundred and thirty-three feet to the northeast of the mill, and on the other side of the street from it.

There was evidence on the part of the plaintiff relating to the particular time of the fire, which tended to show that the plaintiff's buildings were set on fire and burned by a spark from the mill chimney, though the spark was not seen to fall, or the fire to start from there. But this evidence was greatly strengthened by, and to some extent consisted of, a large amount of testimony showing the action and operation of the chimney in throwing such sparks, endangering and setting fire to property, for a long time previous, and up to the time of the fire, and how the mill had been run, and what measures had been taken or omitted by those running the mill, to avoid such danger to surrounding property, a change made in the height of the chimney, and whether, and how far, that change affected the action of the chimney by increasing or diminishing the escape of, and danger from sparks or cinders.

The evidence on the part of the plaintiff (some of which was received under objection, which will be noticed hereafter) tended to show, first, as to the habit of the chimney to throw sparks and the danger to surrounding property:--that from 1862 down to and after the time of this fire, sparks of fire and burning cinders or fragments of fire were frequently and quite generally emitted from the chimney when the mill was running, and carried to considerable distance (as far, and often farther than the Sherman House), falling to the ground and on buildings and sidewalks while still on fire, and sometimes setting fire to buildings and other wooden material they fell upon; that when the wind was from the southwest (especially if strong), and the mill was running, live sparks were frequently seen to fly from the chimney and fall around the Sherman House and near to and upon other buildings, on sidewalks and the yards in and near the same direction; that in 1862 sparks from the chimney were seen to fall and set fire to sawdust near this house; that in 1863 or 1864, and again in 1869, this same Sherman House took fire on the outer south side, when the wind was in the southwest, and mill running, and sparks coming from that direction; that sparks were seen to fall on the sidewalk and set it on fire at one time; that sparks had been picked up on the platform of the Sherman House; that on one occasion clothes were set on fire when out drying on the line near the premises, and that clothes on the line drying in this neighborhood had holes burned in them, and were covered with black, dead sparks, and blackened, and that furniture set out at a cabinet shop about the same distance was rendered smutty in the same way; and that several houses near the Sherman House, and some further off, had to keep their windows shut to avoid injury of this kind to clothes, etc., inside, when the mill was running and the wind coming from the mill; that in 1873, after this fire, the Garvey House, somewhat near the mill, was set on fire under circumstances indicating that it came from such sparks; that fire had caught in several buildings similarly situated, and that all caught on the side towards the mill, and as far as known, when the mill was running, and the wind in the southwest, etc.

Second As to the notice to defendant:--that men at work at the mill had knowledge of these, or most of these things; that in 1869 the engineer of the fire department of the city told persons having charge of the running of the mill, that it was an outrage that the chimney was left in a condition to burn the town; that the day after the Sherman House caught fire in 1869, the plaintiff met Bartow, the defendant's agent, who had charge of the mill and its running, and Bartow recognized the danger of running the mill with the chimney in that condition; said it was too bad, but that the season was getting well advanced; that they had as many logs as they could saw before it froze up, and he did not wish to shut down to repair the chimney then, but would do it before starting in the spring; would have it fixed with a spark-catcher on; wished plaintiff to keep barrels of water around, and be very careful to put out fire if it caught, and plaintiff did so; that notice was also, at about...