Abbot v. Gore

• Court: Wisconsin Supreme Court
• Citation: Abbot v. Gore, 74 Wis. 509, 43 N.W. 365 (Wis. 1889)
• Decision Date: 15 October 1889
• Parties: ABBOT ET AL. v. GORE.

74 Wis. 509

43 N.W. 365

ABBOT ET AL.

v.GORE.

Supreme Court of Wisconsin.

Oct. 15, 1889.

Error to circuit court, Winnebago county.

The defendant in error, Jacob Gore, brought his action in the circuit court against Abbott and Stewart, the plaintiffs in error, to recover the value of a quantity of hay belonging to him and to certain other persons, who, before the action was brought, assigned their claims to him. The hay in question was standing in stacks on a marsh adjacent to the line of the Wisconsin Central Railroad, operated by the plaintiffs in error as trustees, and was burned, as is alleged, in consequence of their negligence in operating the railroad. The negligence charged is that at the place where the fire commenced combustible materials had been allowed to remain on the right of way of the railroad company; that the locomotive engine which set the fire was not provided with proper appliances to prevent the escape of fire; and that such engine was being run at the time at too great a rate of speed for its capacity, thereby causing it to emit an increased quantity of fire. The testimony and rulings of the court on the trial are sufficiently stated in the opinion. A special verdict was demanded, and returned by the jury as follows: “(1) Did a freight train drawn by locomotive engine No. 65 pass the place where the fire originated, shortly before the fire was discovered? Answer. Yes. (2) Was locomotive engine No. 65 in a safe and proper condition in all respects, and provided with all reasonably known appliances to prevent the escape of fire, and in charge of a competent engineer, and properly managed? A. Yes. (Answered by the court.) (3) Were the defendants guilty of negligence, which caused the fire and consequently destroyed the property of the plaintiff and his assignors? A. Yes. (Answered by the court.) (4) If you answer the foregoing question in the affirmative, state in what respects such negligence consisted. A. By leaving ties, grass, and other combustible material on the right of way of the Wisconsin Central Railroad Company. (5) Was the fire set by the engine? A. Yes.” The jury also assessed the value of the hay. The defendants below moved for judgment on the verdict, and also for a new trial. Both motions were denied by the court, and judgment for the plaintiff below was rendered for the value of the hay as assessed by the jury, and for costs. The defendants below thereupon sued out a writ of error from this court to obtain a review and reversal of such judgment.

Chas. W. Felker, ( D. S. Wegg and Howard Morris, of counsel,) for plaintiffs in error.

Gabriel Bouck, for defendant in error.

LYON, J., ( after stating the facts as above.)

Inasmuch as the locomotive engine No. 65, which passed the place of the fire recently before the fire was discovered, was in proper condition, and properly managed and operated, the plaintiff below was not entitled to recover unless the fire originated on the right of way of the railroad company, and in the combustible materials which the jury found were negligently left thereon. If it originated outside the right of way, or within it, at another point, and spread from thence over the marsh on which the hay was stacked, the only negligence which the verdict imputes to the defendants below, to-wit, the leaving of combustible materials on the right of way, was not the proximate cause of the fire, and there can be no recovery in the action. There is no express finding in the special verdict that the fire originated in the right of way, and consequently none that it originated in such combustible materials. Is the omission fatal to the judgment? It is not if such omitted finding can fairly be deduced from the other findings. Eldred v. Oconto Co., 33 Wis. 133;Hutchinson v. Railroad Co., 41 Wis. 541. We think the reasonable inference from the other findings is...