Bell Lumber Co. v. Bayfield Transfer Ry. Co.

• Decision Date: 27 May 1919
• Citation: 169 Wis. 357,172 N.W. 955
• Parties: BELL LUMBER CO. v. BAYFIELD TRANSFER RY. CO.
• Court: Wisconsin Supreme Court

169 Wis. 357

172 N.W. 955

BELL LUMBER CO.

v.BAYFIELD TRANSFER RY. CO.

Supreme Court of Wisconsin.

May 27, 1919.

Appeal from Circuit Court, Bayfield County; G. N. Risjord, Judge.

Action by the Bell Lumber Company against the Bayfield Transfer Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Action to recover damages claimed to have been sustained by plaintiff by reason of the failure of the defendant, as a common carrier, to seasonably furnish cars to transport plaintiff's forest products to market. It appears from the evidence that a portion of the forest products was banked on a spur track, called Wachsmuth spur, owned by a private corporation and used in connection with its private business, from which spur it was the custom to take out products so banked on cars furnished by defendant; and a portion was banked on defendant's own line of railway at a place called Russell's Crossing. Owing to the disrepair of defendant's line of road, and especially of its bridges, traffic was wholly suspended thereon from April 3 to May 12, 1914, while repairs were being made. On May 18, 1914, the forest products located on the spur were burned by a forest fire in no way caused by the defendant. On the same date defendant's bridge No. 8 also burned.

Two separate recoveries are asked in the complaint, one for the value of the products burned at the spur, and one for the loss sustained by reason of the decline in the market price of the products located on defendant's line while they were awaiting shipment. There is no dispute as to the amount of each element of damage if plaintiff is entitled to recover.

Defendant claims it was insolvent, and that it made repairs with due diligence, and that the proximate cause of the destruction of the property by fire was not due to any act or negligence on its part. A jury was waived, and the court found as facts: (1) That the defendant railway company as a common carrier negligently failed to keep its road in sufficient repairs to be in a condition to operate so as to haul plaintiff's forest products from the Wachsmuth spur before they were destroyed by fire on May 18, 1914, and before the bridge called bridge No. 8 was destroyed on the same date; (2) that such negligence was the proximate cause of the burning of plaintiff's material on the Wachsmuth spur and the damage to plaintiff by reason of its inability to fill orders from Russell's Crossing before bridge No. 8 burned on the 18th day of May, 1914; (3) the plaintiff made a sufficient tender of shipment of the material to the railroad company both at the Wachsmuth spur and Russell's Crossing.

As a conclusion of law the court found: That plaintiff is entitled to judgment against the defendant for the sum of $1,812.40 damages on its first cause of action, with interest thereon from May 18th, and for $2,948 on its second cause of action, without interest. From a judgment entered accordingly the defendant appealed.William F. Shea, of Ashland (Alfred H. Bright, of Minneapolis, Minn., of counsel), for appellant.

Lamoreux & Cate, of Ashland (Crownhart & Wylie, of Madison, of counsel), for respondent.

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

[1] The findings of fact denominated as such made by the trial judge are set out in the previous statement. Introductory to such findings the judge says:

“Having heretofore filed a statement in detail of my findings on the evidence, which will supplement these findings, I make these conclusions of facts.”

The only statement to which this can refer is the decision of the court found in the record in which facts are stated and discussed. Among such facts therein found are these:

“The defendant's superintendent knew in 1913 that the road was bad and bridges were deteriorating and was badly in need of repairs, that the defendant lacked funds for making repairs, but that no effort was made prior to the first of April, 1914, by the defendant to raise money with which to make repairs. It is not shown that the defendant lacked credit or was unable to obtain money for the purpose of making necessary repairs.”

The evidence sustains these findings as well as those contained in the findings of fact denominated as such. That being so, the argument of the defendant that it was insolvent, and hence it was not bound to perform an impossibility, namely, make repairs without funds, does not apply to the situation before us. Counsel has cited a large number of cases to sustain the proposition that a common carrier cannot be mulcted in damages for failing to perform the impossible. We need not inquire into the correctness of that proposition here, because it does not fit the facts of the case. It quite conclusively appears from the evidence that Mr. Wales stood ready to furnish funds for...