8 N.W. 214 (Wis. 1881), Wood v. Chicago, Milwaukee & St. Paul Railroad Co.

• Citation: 8 N.W. 214, 51 Wis. 196
• Opinion Judge: HARLOW S. ORTON, J.
• Party Name: WOOD v. THE CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY
• Attorney: Melbert B. Cary, of counsel, for appellant, For the respondent there was a brief by Hazelton & Provis, and oral argument by Mr. Provis:
• Case Date: February 08, 1881
• Court: Supreme Court of Wisconsin

Page 214

8 N.W. 214 (Wis. 1881)

51 Wis. 196

WOOD

v.

THE CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY

Supreme Court of Wisconsin

February 8, 1881

Argued January 12, 1881

APPEAL from the Circuit Court for Crawford County.

Action for the value of goods destroyed by fire, alleged to have been caused by defendant's negligence, while they were in possession of defendant as warehouseman, at one of its depots. At the close of plaintiff's evidence, a motion by defendant for a nonsuit was denied; and evidence was then introduced in defendant's behalf. So much of the instructions given by the court as is important here, will be found in the opinion. The following questions were submitted to the jury for special verdict: "1. Did the fire which consumed the depot building originate from the kerosene lamp left burning therein by an employee of the defendant? 2. Was the leaving of a kerosene lamp burning in the office of the depot building such an act of carelessness, with reference to its liability to communicate fire, as would prevent a man of ordinary prudence in the care of his own property from having so left a lamp burning?" The jury answered both these questions affirmatively, and also found a general verdict for the plaintiff. Defendant's motion for a new trial was denied; and it appealed from a judgment on the verdict.

Judgment reversed and cause remanded.

Melbert B. Cary, of counsel, for appellant, argued, among other things, 1. That the motion for a nonsuit should have been granted. The burden of proving negligence was upon the plaintiff, but there was no evidence offered upon that subject. See Kronshage v. Railway Co., 45 Wis. 503. 2. That the court erred in permitting a witness to testify that he would have regarded it as dangerous to leave lamps burning. This error is the same as that for which a former judgment in this case was reversed. Wood v. Railway Co., 40 Wis. 582. 3. The court erred in its charge to the jury. It directed them to answer a material question in the case upon which there was no evidence whatever. In such a case the question, if it is to be answered at all, is for the court, not the Jury. "Judges do know as much as juries what is the usual and normal state of things." 4 L. R., Exch., 40.

For the respondent there was a brief by Hazelton & Provis, and oral argument by Mr. Provis:

There was no error in denying the nonsuit. The evidence showed that a kerosene lamp had been left burning in the dispatch office of the depot building, and that the fire originated there. This tended to show negligence. The sufficiency or conclusiveness of this evidence was for the jury, and not a matter of law for the court. Grasse v. Railroad Co., 36 Wis. 582; D. & M. Railroad Co. v. Curtis, 23 id., 152; Langhoff v. Railway Co., 19 id., 489; Duffy v. Railway Co., 32 id., 269. The danger from such a lamp and its liability to explode are matters of universal notoriety, requiring no proof. White v. R. R. Co., 17 Am. Law Reg., 783-790. The jury might base their finding upon this common knowledge, and the instructions were therefore not erroneous. Craig v. Durrett, 1 J...