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

• Decision Date: 21 February 1911
• Citation: 145 Wis. 263,129 N.W. 1094
• Court: Wisconsin Supreme Court
• Parties: ALLEN v. CHICAGO & N. W. RY. CO.

145 Wis. 263

129 N.W. 1094

ALLEN

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

Supreme Court of Wisconsin.

Feb. 21, 1911.

Appeal from Circuit Court, Florence County; John Goodland, Judge.

Action by Charles O. Allen against the Chicago & Northwestern Railway Company. From a judgment for plaintiff, defendant appeals. Reversed for new trial.William G. Wheeler, for appellant.

W. B. Quinlan, for respondent.

WINSLOW, C. J.

The plaintiff sued for the value of a portable sawmill and appurtenances, which on September 21, 1908, were destroyed by a fire alleged to have been negligently set by the defendant. There was a general verdict for the plaintiff, assessing his damages at $2,000, and from judgment thereon the defendant appeals.

There were two grounds of negligence alleged: First, that the right of way was allowed to become incumbered with dry grass and other combustible material which took fire from a passing engine; and, second, that the engine itself had no proper appliances for preventing the escape of sparks. The contention is made that there was no sufficient evidence to go to the jury in support of either ground of negligence.

The evidence shows that the railroad track at the point in question is straight and runs nearly east and west, but somewhat north of west. The plaintiff's sawmill outfit was located on the bank of a small lake on premises immediately south of the right of way, and was unoccupied at the time of the fire. There is a steep upgrade as the track goes westward. A witness who lives about a mile west of the mill testified that a few minutes after the passage to the west of the regular way freight train, at about 1 o'clock on the day of the fire, he looked from his place down the track to the east and saw a fire starting in the vicinity of the mill, which seemed to be on the right of way, and that in about an hour and a half he saw thick smoke, which appeared to be over the lake. There was testimony, also, that the wind was in the northwest on the afternoon in question. There was also evidence by the plaintiff himself that he examined the surrounding territory on the following day and found no traces of fire leading to the property except from the northwest, and there he found the surface of the ground burnt over from a point inside of the right of way and adjoining the track without interruption in a southeasterly direction down to the place where the mill was situated. While the evidence was somewhat meager on the question, we are unable to say that there was no evidence to go to the jury.

On the second question, however, we think the appellant's contention must be sustained. Two witnesses gave evidence to the effect that previous to the day in question they had several times seen large sparks or coals on the right of way after the passage of the way freight train in question; but both witnesses testified that they could not identify the locomotive and were unable to say that the locomotive which hauled...