Allard v. Chi. & N. W. Ry. Co.

• Decision Date: 04 December 1888
• Citation: 73 Wis. 165,40 N.W. 685
• Parties: ALLARD ET AL. v. CHICAGO & N. W. RY. CO.
• Court: Wisconsin Supreme Court

73 Wis. 165

40 N.W. 685

ALLARD ET AL.

v.CHICAGO & N. W. RY. CO.

Supreme Court of Wisconsin.

December 4, 1888.

Appeal from Dodge county court; S. W. LAMOREUX, Judge.

September 11, 1886, the plaintiffs, J. G. Allard and Frank Martin, owned a cheese factory and creamery in the city of Juneau, situated on the east side of the defendant's track, and 85 1/2 feet therefrom. It is alleged in the complaint that on that day the defendant run “a locomotive attached to a freight train of the defendant on the said line of railway, * * * so negligently and carelessly * * * that sparks from the smoke-stack of said locomotive escaped, communicated to and set fire to” said factory, and in consequence thereof the same was burned and destroyed, with the contents thereof; that said locomotive was not then and there equipped with a sufficient spark-arrester, screen, or device to prevent the escape of fire therefrom; that such imperfect construction, and negligent management and operation, caused such burning and destruction, to the damage of the plaintiffs. The answer consisted of admissions, denials, and allegations. At the close of the trial the jury returned a special verdict, to the effect (1) that the engine was furnished with the usual and ordinary appliances to prevent the escape of sparks from the smoke-stack at the time the plaintiff's buildings were burned; (2) but that such appliances were not in good condition to prevent the escape of sparks from the smoke-stack; (3) that the engine in question at that time was not operated in the usual and ordinary manner; (4) that the defendant was guilty of negligence in the equipment of the engine in question, with respect to the escape of sparks from the smoke-stack at the time of such burning; (5) that the defendant was guilty of negligence with respect to the operation of the engine at the time in question; (6) that said building was set on fire from a spark escaping from the smoke-stack on the engine in question; (7) that the value of the property destroyed was $3,000; (8) that they found for the plaintiffs, and assessed their damages at $3,000. From the judgment entered upon said special verdict in favor of the plaintiffs for said sum as damages, and the costs, the defendant brings this appeal.Jenkins, Winkler & Smith and C. H. Van Alstine, for appellant.

J. E. Malone and E. P. Smith, for respondents.

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

The freight train in question reached Juneau from the south, September 11,...