Webster v. Symes

• Citation: 66 N.W. 580,109 Mich. 1
• Court: Supreme Court of Michigan
• Decision Date: 24 March 1896
• Parties: WEBSTER v. SYMES ET AL.

66 N.W. 580

109 Mich. 1

WEBSTER v. SYMES ET AL.

Supreme Court of Michigan

March 24, 1896

Error to circuit court, Missaukee county; Fred H. Aldrich, Judge.

Action by Mary E. Webster against James E. Symes and another for negligently causing the destruction of plaintiff's property by fire. There was a judgment for plaintiff, and defendants bring error. Affirmed.

F. O. Gaffney and M. Brown, for appellants.

S. B Daboll and O. L. Spaulding, for appellee.

MONTGOMERY J.

This is an action for negligently causing the destruction of plaintiff's property by fire. The defendants are the owners of a steam sawmill in the village of McBain, and plaintiff occupied a hotel in the same village. The declaration, in the first count, averred the ownership and occupancy of plaintiff's property, and further averred: "The said defendants were also possessed of lot number nine in the said village of McBain lying near to, and westerly of, the said premises of the said plaintiff, on which was a sawmill, then and there, by the said defendants, their employ�s and servants, being operated and run by steam power, generated by fire in a furnace located in or about said mill; and at the time and place aforesaid the lands, premises, buildings and other property about said mill and village, and the said hotel and barn of said plaintiff, were dry, and liable to take fire and burn from any fire, sparks, or cinders that might come and lodge thereon; and a strong wind was then blowing from the west towards the east, and towards the said hotel and barn of the said plaintiff, calculated to, and which would, carry fire, sparks, and cinders, coming from said mill, easterly a long distance, along and upon the premises about said mill and village, and the said hotel and barn of the said plaintiff, and thereby set fire thereto, and burn and destroy the same; and by reason thereof the operation and running of the said mill by the said defendants as aforesaid was dangerous and hazardous, and liable to communicate fire therefrom to the premises and buildings about and adjacent to said mill, and to the said hotel and barn and property of the said plaintiff,-of which the said defendants were then and there well knowing. And the said plaintiff avers that it then and there became and was the duty of the said defendants, in the operating and running of the said mill, to use care and caution in and about the running of the same, to prevent the taking and spreading of fire therefrom in and upon the said premises and buildings, and the said hotel and barn and property, of the said plaintiff, and the injury and burning of the same, and to protect and care for the fire in and about said furnace, and the smokestack of said mill, connected therewith, with dampers, screens, spark arresters, or other suitable devices, as to prevent the escape and spreading abroad from the same of fire, sparks, or cinders, and the setting of fire thereby to, and injuring and burning, the said premises and buildings, and the said hotel, barn, and other property of the said plaintiff; and it also became and was the duty of the said defendants, because of the great violence of the wind then blowing as aforesaid, from the west, towards the said premises and buildings, and the said hotel and barn of the said plaintiff, and to prevent injuring and burning the same, to cease operating and running said mill, and to shut down the same, and put out the fires in said furnace during the prevalence of said wind." The defendants did not shut down the mill, "and the said defendants then and there so carelessly, negligently, and improvidently operated and run said mill, and managed, directed, and conducted said fires in said furnace and smokestack, that, by and through the carelessness, negligence, and mismanagement of the said defendants in and about said fire, fire, sparks, and cinders from said furnace and smokestack escaped therefrom, and were carried by the wind, blowing as aforesaid, to and upon lot four of said village, lying east of said mill, and occupied by the said defendants, and into and upon the hay, straw, and litter lying in and about a certain barn thereon, so that the said barn, by reason thereof, took fire therefrom, and was utterly burned, consumed, and destroyed; and it became and was impossible to put out or check said fire, and it then and there spread and extended easterly therefrom to the said hotel and barn of the said plaintiff, standing and being on said lot three of said village." The second count, in addition to the averment as to conditions and surroundings, averred that it was the duty of defendants to provide a spark arrester or other device to prevent the spreading about from the smokestack of cinders, and the setting of fire thereby, and that it was the duty of defendants, because of the violence of the wind so blowing, etc., to cease operating the mill during the prevalence of the wind, and averred that defendants failed of their duty in this regard.

The testimony in most parts was conflicting. The plaintiff offered testimony tending to show that, on a previous occasion of a high wind, in a dry time, defendants had been requested to shut down the mill by the village marshal, and had recognized the propriety of the request, and had done so that, on the day in question, a live spark had, during the noon hour, been blown into the barn where the fire afterwards originated from (it is claimed) a similar cause; that, during the forenoon of the same day, a stump in the street a little north and east of the barn, but in the same general direction from the mill, caught fire; that, previous to this, a live spark had fallen on the person of one of defendants' employ�s in the mill yard, about 150 feet from the smokestack, and on other occasions the smokestack had been seen to emit sparks. There is no controversy but that the wind was very high upon the day in question. It is conceded that defendants were running the mill, and were not using spark arresters. There was a...