Alpern v. Churchill

Decision Date04 June 1884
Citation53 Mich. 607,19 N.W. 549
CourtMichigan Supreme Court
PartiesALPERN v. CHURCHILL and others.

Negligence must be affirmatively proved; but, like other facts, it may be shown by irresistible inference from circumstances.

Where in an action for injury caused by sparks from a burner, there was evidence that warranted the inference that the burner was in a defective condition, it was proper to show that when a change had been made after the damage was done, the dangerous emission of sparks ceased.

Negligence implies fault, and cannot be predicated of a lawful and customary use of one's own premises.

Contributory negligence cannot be predicated of the erection, in a customary, lawful, and proper manner, of buildings constructed of the usual material upon the owner's premises, even though there are establishments in the neighborhood from which there is risk of fire or damage. And the owner of such buildings is not bound to incur the expense of providing his buildings with extra safeguards.

Error to Alpena.

Turnbull & Dafoe, for plaintiff and appellant.

Clayberg & Sleater, for defendants.


Action on the case for a negligent injury by fire, alleged to have been communicated from defendants' premises.

It seems that in 1877, defendants, being the owners and in possession of certain premises in the city of Alpena, and operating a steam saw-mill thereon, for the purpose of consuming the refuse matter arising from the manufacture of lumber, such as slabs, saw-dust, etc., erected upon such premises a refuse burner, so called. Its general dimensions and description seems to be as follows: The base is cylindrical in form, and 22 feet in diameter inside. This diameter continues up some 41 feet from the ground. From this point up 38 feet it is conical in form, tapering from a diameter of 22 feet to a diameter of 8 feet. From this point it again assumes a cylindrical shape 8 feet in diameter for some 18 feet higher. All this is made of iron. Surmounting this structure is a wire bonnet or spark-arrester constructed of woven wire, with a 4X4 mesh, or 16 holes to the square inch. This spark-catcher continues the diameter of eight feet for about eight feet higher, when it terminates in a cone, the apex of which is about two feet higher than the sides. There are no holes in the top, except the mesh as above referred to, the conical bonnet covering the entire structure. The apertures in the bonnet are about one-eighth and one-sixteenth of an inch square. The sparks which escape are freed at an altitude of about 105 to 107 feet from the ground.

Somewhat north-east of this refuse-burner, and at from 300 to 350 feet distant therefrom, plaintiff's premises were situated and they are described by plaintiff's husband about as follows: They consisted of a boarding-house, a packing-house, and an ice-house. The frontage was upon Thunder Bay river, and they extended back towards Water street, and their southerly line, if produced, would have intersected Water street from one to two hundred feet north of a line drawn from the northerly side of the refuse-burner. The boarding-house, which was built in 1879, was the most northerly of the buildings, and furthest from the burner. Its dimensions were 50 feet long by 20 feet wide, and two stories high. It was a frame building, clapboarded and painted outside, ceiled inside, and having a shingle roof. Next adjoining and nearer the burner, and also facing the river, was the packing-house. This was built in 1881. It was 70 feet long by 20 feet wide, having 22-feet posts, making it two and one-half stories high; the lower story being used for packing fish, the second story being used for stowing nets, seaming on nets, and doing work connected with nets; the upper floor being used as a store-room for everything connected with the fishing business. It was a wooden building, unpainted, and having a shingled roof. Commencing immediately in the rear of this packing-house, and extending back towards Water street, was situated the ice-house, of the following dimensions: 102 feet long, 30 feet wide, with 20-feet posts. It was sheeted inside, clapboarded outside, with a shingle roof, and unpainted. This was erected in the winter of 1877-78. The fire is alleged to have started about midway on the roof of the ice-house nearest the burner, and evidence was given tending to show that at the time of the fire the wind was blowing from the direction of the burner. Immediately south of the plaintiff's said premises, and about 60 or 75 feet distant, is situated a steam shingle-mill, having a smoke-stack or chimney covered by a spark-catcher. There were also two chimneys or smoke-stacks used with defendants' mill, and located a little south-easterly from the refuse-burner.

The declaration contains six counts. The first alleges that defendants "negligently suffered the tops of said chimneys and refuse-burner to remain open without proper and sufficient spark-catchers or other contrivances therein, and without using any adequate means to prevent the escape of said sparks from said chimneys, refuse-burners, and fires as aforesaid."

The second count alleges that defendants "negligently suffered said chimneys and said refuse-burner to remain of insufficient height, and the tops thereof to remain open without proper catchers thereon, and without using any adequate means to prevent the escape of sparks from said chimneys and said refuse-burner, and suffered said mill to be operated and run in an unskillful and imprudent manner."

The third count alleges that defendants "negligently suffered the said refuse-burner to continue and remain of insufficient height, and without a proper or sufficient spark-catcher on the top of the same, and negligently allowed large quantities of sparks of fire to be emitted from the top of said refuse-burner."

The fourth count alleges that defendants "negligently suffered sparks of fire to escape from their said mill," which is preceded by an allegation that defendants "did not or would not use reasonable and necessary precautions to prevent the escape of said sparks of fire from their said mill."

The fifth count alleges that "defendants persisted in thus operating and running their said mill with said fires, chimneys, and refuse-burner in a careless and negligent manner as aforesaid, and without taking proper and reasonable means and precautions to prevent said danger to plaintiff's said buildings, and other said buildings near said mill, and to prevent said sparks from escaping from said mill chimneys and refuse-burner, and falling upon plaintiff's said buildings;" and that "said damage and destruction was caused by the negligence of said defendants in operating their said mill, and of their neglect to take such precautions as aforesaid."

The sixth count alleges that "divers sparks and brands of fire escaped and were thrown from their said mill by and through the mere carelessness and negligence in operating and running their said mill."

The following statement presents the substance of evidence given on the trial:

Joseph Ross was at work at Masters & Folkert's shingle-mill in July, 1882, when the fire occurred. The shingle-mill was 60 to 75 feet from plaintiff's buildings. The fire caught in the center of the roof of the ice-house. During the same summer, at different times, witness had seen cinders or live sparks falling from the burner and catching around that shingle-mill, perhaps half a dozen times. Had also seen the same thing the year before, and at one time, standing with George Robinson in front of Masters & Folkert's office a live cinder fell at their feet. The wind was then in the direction of defendants' burner. Defendants' smoke-stacks were covered the same all the season of 1882. At the time of the fire the burner had a round-top spark-catcher, caved in at the top. It was not so...

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2 cases
  • Bellefeuil v. Wilson
    • United States
    • Court of Appeal of Michigan — District of US
    • August 24, 2023
    ... ... proof" of negligence is not required where an ... "inference" of negligence is ... "irresistible." Alpern v Churchill , 53 ... Mich. 607, 612-613; 19 N.W. 549 (1884). Because inferences ... suffice, direct evidence is not a prerequisite to ... ...
  • Darling v. Hoban
    • United States
    • Michigan Supreme Court
    • June 4, 1884

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