Atkinson v. Goodrich Transp. Co.

Citation69 Wis. 5,31 N.W. 164
PartiesATKINSON AND OTHERS v. GOODRICH TRANSP. CO.
Decision Date11 January 1887
CourtUnited States State Supreme Court of Wisconsin

OPINION TEXT STARTS HERE

Appeal from circuit court, Winnebago county.

Action to recover damages for setting and spreading fire. There was a trial by jury, and a verdict rendered for plaintiff. Defendant appealed.Vroman & Sale and Lusk & Bunn, for respondents, Atkinson and others.

Ellis & Green, for appellant, Goodrich Transp. Co.

TAYLOR, J.

This case was before this court on a former appeal from a judgment in favor of the respondent, and the judgment was reversed for errors committed on the trial, and a new trial was ordered. See 60 Wis. 141;S. C. 18 N. W. Rep. 764. The nature of the action is fully stated in the reported case, and need not be restated here. The case has been retried, and it is again brought here on an appeal by the defendant. The learned counsel for the appellant assigned 12 causes for the reversal of the judgment.

The first error assigned is the refusal of the court to set aside a finding of the jury that the steam-exhaust was not inside of the smoke-stack, when passing the place where the fire first kindled. This was clearly a question for the jury on the whole evidence, and this court cannot say that the circuit judge erred in not setting it aside.

The second error is an exception to the instructions of the court to the jury, as to the necessity of the defendant keeping in use on its boat the most approved machinery that could reasonably be obtained to prevent the fire from spreading from their engine. The only objection made to this instruction is that the court said such improved machinery “should be kept constantly in use.” The use of the words “constantly in use,” if understood as relating to all times and places, was clearly wrong, but, as explained by the court to the jury, they must have understood that such “constant use” related only to such times and places as rendered it unsafe not to use such machinery. We think the defendant could not have been prejudiced by the general use of the word “constantly,” under the circumstances.

The third error assigned is that the court instructed the jury that the defendant was required to use the utmost care, in the use of all reasonable and proper means, with regard to the equipment and machinery of the steamboat, to prevent the escape of cinders and sparks. The use of the word “utmost,” if intended to convey the idea that more than reasonable care, under all the circumstances, should be used, was error. But this court has said that this language may mean no more than saying that the defendant should have used reasonable care. Whether the utmost care means reasonable care depends upon the nature of the subject-matter referred to. If the subject-matter spoken of was the care necessary to be used in carrying fire about a powder mill, there certainly could be no error in saying that the utmost care should be used, as nothing less than that would be reasonable care. So there might be circumstances attending the running of a steam-boat in a narrow river, when the shores are covered with combustible materials, in a very dry time, when the wind was blowing from the steamer directly upon such combustible matter, and which would be very likely to ignite if sparks were permitted to escape from the smoke-stack of the boat. In such case the utmost care to prevent the escape of such sparks would probably be no more than reasonable care. Kellogg v. Railroad Co., 26 Wis. 223;Read v. Morse, 34 Wis. 315-318. If there was any error in this instruction, it could not have prejudiced the defendant, as the jury found that sufficient care had been used by the defendant in providing proper equipments and machinery for the boat.

The fifth error assigned is the refusal of the court to give an instruction “that, if the only danger arising from the sparks emitted by the steamer was the fact that there were shavings and rubbish about the mill and dock where the fire kindled, then the defendant was not guilty of negligence, though the persons in charge of the boat knew of the existence of such shavings and rubbish, and were not guilty of negligence in proceeding on their voyage.” This point, stated somewhat differently, was decided against the defendant on the former appeal; and as it entirely ignores all questions as to the strength and direction of the wind at the time, and the dryness of the weather, we think there was no error in refusing the instruction.

The sixth error relates to the instruction of the court as to what weight the jury should give to the expert evidence. The instruction was, we think, in accord with the ruling of this court in the case of In re Blakely, 48 Wis. 305,S. C. 4 N. W. Rep. 437, and the case of Head v. Hargrave, 105 U. S. 45. As nearly all the expert evidence given, related to the equipment of the boat, and the jury found for the defendant on that question, the defendant could not have been prejudiced by it in any event.

The seventh error assigned is the rejection of the evidence offered by the defendant to show that this same boat had navigated the Chicago river, among the lumber yards of the city of Chicago, and had set no fires. We think the evidence was clearly inadmissible.

The eighth error assigned is the refusal to permit a witness to answer the following question: “What was being done, before this time that you got to McKing's store, by people in the vicinity of Cherry, Washington, and Walnut streets, with regard to the removal of property?” The pertinency of the question is not apparent on the face of it, and if, as the learned counsel for the defendant now claims, it was offered for the purpose of showing the direction of the wind at the time the fire was kindled, and to sustain the contention of the defendant on that point, he should have explained his offer at the time. Without any explanation, the court properly refused to permit the question to be answered.

The ninth error was the refusal to submit to the jury the question, “What was the nearest point to the planing-mill dock that the Oconto came upon her voyage on the day in question?” This question, if answered, would determine nothing definitely as to the negligence or want of negligence on the part of the defendant, and was properly excluded in the discretion of the trial court. See Eberhardt v. Sanger, 51 Wis. 72;S. C. 8 N. W. Rep. 111;Jewell v. Railroad Co., 54 Wis. 610;S. C. 12 N. W. Rep. 83;McLimans v. Lancaster, 63 Wis. 603, 604;S. C. 23 N. W. Rep. 689.

The tenth, eleventh, and twelfth errors relate to the question of the contributory negligence of the defendant. We think no competent evidence was excluded by the trial judge upon that point, and that there were no errors in his instructions to the jury thereon.

The fourth error assigned, and the one which was argued with great ability by the learned counsel for the respective parties at the hearing, presents, as we think, the only question of considerable difficulty in the case. It is alleged by the learned counsel for the appellant that a very grave error was committed by the trial judge in giving the jury the following instruction: “If the plaintiff has satisfied you, by a fair preponderance of the testimony, that the fire at the planing-mill was set by sparks or cinders from the smokestack of the steam-boat Oconto, then the burden of proof is on the defendant to show that it employed all due care, according to the rule given you, for the prevention of mischief arising to the property of others by the emission of sparks and cinders, and that it used all reasonable and proper care in handling and managing the steam-boat Oconto.” This instruction presents very important questions, in two respects, at least: First, is the instruction correct in its first proposition? and, second, if correct as to the first proposition, was the proposition correct that when the plaintiff has made out a mere prima facie case of negligence on the part of the defendant, then the burden of proof is cast upon the defendant to show that there was in fact no negligence on its part?

It is evident that the learned counsel for the plaintiffs did not try the case at the circuit court upon the theory given to the jury by the learned trial judge in the instruction above quoted. From the record in the case it appears that the plaintiffs took the laboring oar, and introduced the evidence on their part to satisfy the jury, not only of the fact that the fire which ultimately destroyed Mr. Atkinson's house was kindled by a spark from the steamer Oconto, but of the further and material fact in the case that such fire was kindled by the negligence of those in charge of her at the time,--and it is to be regretted that, after so trying the case, an instruction should have been requested and given to the jury in direct conflict with the course of those representing the plaintiffs during the trial. That this instruction, standing by itself, is clearly erroneous is, we think, apparent.

Under the circumstances attending the destruction of the house of Mr. Atkinson, the mere fact that sparks from the steamer kindled the fire at the dock did not make out a prima facie case against the defendant. On the former appeal this court reversed the judgment against the defendant, among other things, because the court refused to instruct the jury that, in order to enable the plaintiffs to recover, “the jury must find that, while the boat was passing the planing-mill, it was reasonable to expect that sparks, cinders, or coals from the smoke-stack would cause the destruction of Atkinson's house,” and also because the court refused to submit to the jury the following questions: “Was the burning of John Atkinson's house the natural result of the burning of the planing-mill?” and “Was it reasonable to expect when the boat passed the planing-mill, that fire from the smoke-stack would set fire to the planing-mill?” It was also said in that case (page 167) that “whether...

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