Atkinson v. Goodrich Transp. Co.

• Decision Date: 18 March 1884
• Parties: ATKINSON AND ANOTHER v. GOODRICH TRANSP. CO.
• Court: Wisconsin Supreme Court

60 Wis. 141

18 N.W. 764

ATKINSON AND ANOTHER

v.GOODRICH TRANSP. CO.

Supreme Court of Wisconsin.

Filed March 18, 1884.

Appeal from the circuit court, Outagamie county.Vroman & Sale and Cameron, Losey & Bunn, for respondents, John Atkinson and another.

E. H. Ellis and Hastings & Greene, for appellant, the Goodrich Transport. Co.

TAYLOR, J.

The respondents brought this action against the defendant company to recover the value of certain personal property, and of a dwelling-house situate in the city of Green Bay, which were destroyed by fire September 20, 1880. The insurance company is a party plaintiff because it had insured the dwelling-house, and paid the insurance thereon, and in consideration of such payment Atkinson had assigned to the insurance company his claim against the defendant company for the value of the house destroyed. The plaintiffs claim the right to recover upon facts set out in the complaint, showing that the property was burned by the carelessness of the persons in charge of one of the steam-boats of the defendant company while navigating the Fox river, in the said city of Green Bay. The allegations of negligence, upon which the plaintiffs rely, are set out in the complaint as follows:

“That on or about the twentieth day of September, A. D. 1880, the said defendant being the owner of and engaged in running the said line of steamboats at Green Bay, in the county of Brown, in this state, so unskillfully and negligently built, equipped, run, and operated one of its said boats, the Oconto, by failing and neglecting to have any spark-arrester, or contrivance for preventing the escape of sparks and fire from the smoke-stack of said boat, upon, attached to, or connected with the said boat in any manner, and by negligently starting said steam-boat from its wharf, within the city of Green Bay, in the Fox river, where she lay, the Green Bay shore of said river being then and there covered by many old and dry wooden buildings of highly combustible character, a heavy wind then and there blowing across the course of said vessel, from the southwest, on to the said Green Bay shore, and negligently propelling said vessel up the Fox river, within about forty rods of said Green Bay shore, quartering against said wind under a heavy head of steam, the smoke-stack of said vessel in the mean time throwing out large quantities of sparks and fire, said sparks, as could be plainly seen, being carried by the wind onto shore, among and on to said combustible wooden buildings, and manifestly endangering the same; that by said sparks so negligently thrown and scattered on shore a fire was set among certain buildings near the upper bridge over the Fox river, in said city of Green Bay.

That, as the master and those in charge of said vessel well knew before the fire before mentioned was set, several fires had caught on the shore from the sparks thrown out by said vessel, after she left her wharf and before she reached the point aforesaid, notwithstanding which the defendant negligently caused the said vessel to continue on her course along the shore as before described.

That all of said matters happened within the city of Green Bay, a duly incorporated city of this state, duly authorized by its charter to regulate spark-arresters on steam-engines and steam-vessels run or operated within its limits.

That there was in force at that time within the said city, duly passed by its mayor and council, an ordinance which, among other things, provided: ‘It shall not be lawful for any person or corporation within this city to operate any steam-engine, steam-tug, steam-boat, propeller, mill, factory, or shop of any kind, whenever steam-power is used, without having first provided for the smoke-stack or chimney there of a sufficient spark-catcher, screen, or some other device, to prevent the escape of sparks or burning cinders therefrom. Such spark-catcher, screen, or other device shall be substantially attached in or upon such smoke-stack or chimney, and shall be kept in good repair, so as to prevent the escape of sparks or burning cinders therefrom as effectually as the same can be prevented by any means known or in use for that purpose.’

That said vessel was at the time aforesaid being run, equipped, and operated negligently and unlawfully, in direct violation of such ordinane.

That from the fire so set by said vessel the flames spread directly and proximately, without the intervention of any other cause, to the frame buildingoccupied as a dwelling-house by the plaintiff John Atkinson, situated on the south side of Cherry street, on lot 670, in the Second ward of the city of Green Bay, and the personal property contained therein, which was thereby totally destroyed by the defendant's said negligent and unlawful acts, being then and there the property of the said John Atkinson, to his damage one thousand five hundred and forty-eight 75-100 dollars.”

The answer of the defendant company was a general denial.

The evidence on the part of the plaintiff on trial in the circuit court showed that the steam-boat was not provided with a spark-catcher, as required by the ordinance of the city of Green Bay, set forth in the complaint and given in evidence on the trial; also evidence tending to show that the boat was in other respects negligently and carelessly managed at the time by those in charge of her, and that by reason of such negligent and careless management the sparks emitted from the smoke-stack of said boat were carried to the shore and kindled a fire in some shavings and saw-dust lying near a planing mill, and between the mill and the river dock; that the fire so kindled was communicated to the planing mill which was burned, as well as a large number of other buildings in its neighborhood, which is spoken of by counsel as the first fire district, and extended about 1,600 feet from the planing mill to Jackson street, in said city; in this district 30 building were destroyed by the fire, and 57 houses escaped the flames; thence from Jackson street there was a space of about 1,650 feet in which no buildings were burned; and then the fire broke out again in what is called the Kitchen House, in the second fire district, and spread from that house to the East river, a distance of 1,500 feet more. In this second fire district 37 houses were destroyed, and among them the house of Atkinson and the personal property therein. The last house burned was 4,650 feet from the planing mill. The Atkinson house burned was about 3,500 feet from the said mill. The line of fire was, as claimed by the plaintiffs and as their testimony tends to show, in the direction in which the wind was blowing when the boat steamed up the river and emitted the sparks from her chimney which kindled the fire near the planing mill. The evidence tends strongly to show that all the buildings in what is called the first fire district were burned from sparks and brands carried by the wind from the mill to buildings in the vicinity and from such buildings to others in succession, and that the fire was kindled in what is called the Kitchen House, in the second fire district, by sparks or brands carried by the wind from the burning buildings in the first fire district. The Atkinson building did not take fire until about an hour after the planing mill caught fire. Upon the evidence given on the trial we think there can be no reasonable question that the jury were justified in finding that the fire was kindled in the shavings and saw-dust near the planing mill by the sparks emitted from the smoke-stack of the steam-boat while steaming up the river; that the fire so kindled spread in a few minutes to the planing mill; and that all the other buildings burned in both the burned districts were destroyed by reason of sparks and brands of fire carried by the wind from one burning building to another.

The evidence also tends to show that at the time the steam-boat left her dock to proceed up the river the wind was blowing at the rate of 25 or 30 miles an hour from the south-west, in a direction to carry the sparks emitted from the smoke-stack directly towards the buildings upon the shore, and that it was a very dry time; that the shore was covered with wooden buildings and other combustible matter, and it tended to show that this latter fact was known to some of the officers in charge of the boat at the time. The evidence on the part of the plaintiff also tended to show that the boat labored hard to make headway up the stream and against the wind; that the steam exhaust was inside of the smoke-stack, and an unusually large quantity of sparks were emitted from the smoke-stack. This evidence was contradicted by the witnesseson the part of the defendant; but, upon the whole evidence, these matters were all clearly questions of fact for the jury.

At the close of the evidence the defendant requested that the jury find a special verdict; and thereupon the court ordered and directed a verdict as follows:

“The jury are directed to find the following facts, and do find as follows:

(1) That the Phœnix Insurance Company and the Goodrich Transportation Company are and were corporations at all the times alleged in the complaint, as therein alleged.

(2) That at the time of the fire in question the defendant was the owner of a line of steam-boats, including the steam-boat Oconto, and that said steam-boat Oconto was, at that time, engaged in the business of running between different ports on Lake Michigan and the waters tributary thereto, and in such business touched regularly at ports in the states of Illinois, Wisconsin, and Michigan on each trip.

(3) That said steam-boat Oconto at said time was of the burden of 505 35-100 tons, was engaged in carrying freight and passengers, and was duly enrolled and licensed under the laws of the United States so to do, and by said license, duly issued, was authorized, in terms, ‘to be employed in carrying on the coasting and foreign trade for...