Bonnell v. Chi., St. P., M. & O. Ry. Co.

• Decision Date: 18 June 1914
• Citation: 147 N.W. 1046,158 Wis. 153
• Court: Wisconsin Supreme Court
• Parties: BONNELL v. CHICAGO, ST. P., M. & O. RY. CO.

158 Wis. 153

147 N.W. 1046

BONNELL

v.CHICAGO, ST. P., M. & O. RY. CO.

Supreme Court of Wisconsin.

June 17, 1914.

Dissenting Opinion June 18, 1914.

Appeal from Circuit Court, Douglas County; W. J. Turner, Judge.

Action by W. H. Bonnell against the Chicago, St. Paul, Minneapolis & Omaha Railway Company. From a judgment in favor of plaintiff, defendant appeals, and plaintiff brings a cross-appeal. Affirmed.

Winslow, C. J., and Barnes and Vinje, JJ., dissenting.W. R. Foley and W. M. Steele, both of Superior, for plaintiff.

R. L. Kennedy, of St. Paul, Minn., and S. L. Perrin and L. K. Luse, both of Superior (James B. Sheean, of St. Paul, Minn., of counsel), for defendant.

TIMLIN, J.

This cause was tried in June, 1912, and a verdict returned for defendant. On motion of the plaintiff this verdict was set aside and a new trial granted because of instructions given which the trial court upon reflection deemed erroneous. An appeal was taken by defendant to this court from the order granting a new trial. This appeal was by order of this court on motion of the plaintiff dismissed for want of prosecution on January 28, 1913. The parties thereafter went to trial a second time, and upon the latter trial a special verdict was returned finding that the fire which destroyed plaintiff's property was caused by sparks or cinders emitted from defendant's engine No. 256; that the spark arrester upon said engine was not so constructed of steel or iron wires as to give the most practical protection against the escape of sparks, cinders, or fire from the smokestack. This failure to so equip the engine was a proximate cause of the destruction of plaintiff's property by fire. The defendant also failed to exercise ordinary care in the operation of said engine when passing plaintiff's property on the occasion in question which was also a proximate cause of the destruction of plaintiff's property. Plaintiff did not by any failure to exercise ordinary care proximately contribute to his injury. The value of the property on May 10, 1910, was $6,000, which with interest to the time of verdict amounted to $7,116. Judgment upon this verdict was rendered in favor of the plaintiff, and defendant appeals from the judgment.

[1] The first question to be determined is whether the order made at the first trial granting plaintiff a new trial is subject to review upon this appeal from the judgment in favor of plaintiff given on the verdict in the last trial, where no bill of exceptions was settled within 30 days from the notice of entry of such order, and where an appeal from such order to this court has been taken and such appeal dismissed. We think not.

The time within which an appeal may be taken directly from an order is limited to 30 days from the date of the service of a copy of such order with written notice of the entry of the same. Section 3042, Stats. If a bill of exceptions be proposed with a view to an appeal from an order, it must be served within 30 days after the service of a copy of such order and written notice of entry thereof. Section 2876, Stats. No such bill of exceptions was served or settled in this case. Upon an appeal from a judgment the Supreme Court may review any intermediate order or determination of the court below which involves the merits and necessarily affects the judgment provided such order appears upon the record transmitted or returned from the circuit court. The order in question made in the first trial is not such an order. It does not involve the merits of the judgment appealed from or necessarily affect that judgment. The evidence may be entirely different in the second trial. The defendant by failing to settle a bill of exceptions from the order, by submitting to the dismissal of its first appeal by this court and proceeding to trial and taking its chances on the second trial, is in no position to now present for review in this court the order made in the first trial granting plaintiff a new trial. Questions closely related to this have been considered several times by this court. For example, after serving an amended complaint the plaintiff cannot appeal from the order sustaining a demurrer to the original complaint. Hooker v. Brandon, 66 Wis. 498, 29 N. W. 208; s. c., 75 Wis. 8, 43 N. W. 741. One who obtains an order granting a new trial thereby waives the right of appeal from a previous order denying his motion for judgment made upon the ground that the verdict is contrary to evidence. Schweickhart v. Stuewe, 75 Wis. 157, 43 N. W. 722. After the time for appealing has expired, a bill of exceptions should not be settled upon an order granting a new trial. Nelson v. A. H. Stange Co., 140 Wis. 657, 123 N. W. 152;Shafer v. Eau Claire, 105 Wis. 239, 81 N. W. 409. See, also, Maxwell v. Kennedy, 50 Wis. 645, 7 N. W. 657;Starkweather v. Johnsen, 66 Wis. 469, 29 N. W. 284;Kayser v. Hartnett, 67 Wis. 254, 30 N. W. 363.

[2] It is true that in Becker v. Holm, 100 Wis. 281, 75 N. W. 999, an order of this kind was reviewed on appeal from the last judgment; but this point was not made, at least it is not noticed in the decision. The cumulative effect of the statutes and decisions above cited taken with the dismissal of the appeal in this court disposes adversely to the appellant of its claim to review upon this appeal the order made on a former trial of this case granting a new trial to respondent. The contrary rule would unnecessarily prolong litigation and would not be in harmony with the weight of authority outside of this state, 3 Cyc. 229, and cases cited in note 78. Indeed, we think our statute (section 2876, supra) contemplates that in all cases of an order granting a new trial there must be a bill of exceptions settled within 30 days after service of a copy of that order with notice of entry thereof unless an appeal is taken and such time is extended upon good cause shown. We consider the verdict supported by evidence which need not be here detailed.

[3][4] With reference to errors assigned upon rulings on evidence we find no serious or prejudicial error. It is not improper to ask a general master mechanic of a great railway who has served in that capacity for 20 years for this one road only whether certain locomotive appliances were in common use. His position must have brought such things to his knowledge although his services were confined to one road. So also many of the questions objected to as invading the province of the jury were not, as argued, ultimate issues of fact, but evidential details proper to be established by opinion evidence; as, for example, the question:

“Q. With a proper spark arrester in proper condition state whether or not such a spark will get through and strike the ground at ignition temperature?”

We cannot undertake to review all these rulings in detail. Suffice it to say that most of such objections are extremely technical, and most of the rulings were correct, and those which were doubtful or incorrect were not in our opinion prejudicial.

[5] We see no objection to the form of the second question of the special verdict. It describes and covers substantially in the language of the statute the duty imposed upon the defendant by that statute. So we think the second question of the special verdict presented an inquiry proper for the consideration of the jury. The answer to this question was equivalent to a finding of negligence on the part of defendant. Pizzo v. Wiemann, 149 Wis. 235, 134 N. W. 899, 38 L. R. A. (N. S.) 678, Ann. Cas. 1913C, 803;Leora v. Ry. Co., 146 N. W. 520;Willette v. Rhinelander Paper Co., 145 Wis. 537, 130 N. W. 853;Klatt v. N. C. Foster L. Co., 97 Wis. 641, 73 N. W. 563;Smith v. Milwaukee B. & T. C., 91 Wis. 360, 64 N. W. 1041, 30 L. R. A. 504, 51 Am. St. Rep. 912;Martin v. Western Union Ry. Co., 23 Wis. 437, 99 Am. Dec. 189.

The fourth finding of the special verdict declared the defendant at the time and place in question also negligent in the operation of the engine. This finding is not necessary to uphold the judgment appealed from, for with the second finding and the finding of proximate cause relative thereto the liability of defendant is found.

It is contended that the instructions given by the learned circuit judge upon the second trial were erroneous and prejudicial and that certain instructions requested by defendant should have been given. The instructions were those appropriate to a special verdict in form; that is, each question of the verdict was read to the jury and separate instructions given relative to that question. With reference to question 2, which inquired whether the spark arrester upon the engine in question was constructed of steel or iron wires so as to give the most practical protection against the escape of sparks, cinders, etc., from the smokestack thereof, as already said, the question is framed upon the statute which imposes that duty upon the defendant. Section 1494--57, subd. 1. The locomotive did not burn oil as fuel, and it appears to have been operated in, through, or near forest, brush, or grass land. In fact, it would be very difficult to imagine a railroad which did not run in, through, or near forest, brush, or grass land. In the instructions relative to this second question the court said:

“I instruct you that the burden of proof is upon the defendant to satisfy you by a fair preponderance of the credible evidence, to a reasonable certainty, that said spark arrester upon said engine was so constructed of steel or iron wires as to give the most practicable protection against the escape of sparks, cinders, or fire from the smokestack, and unless the defendant has so satisfied you, by a fair preponderance of the credible evidence, to a reasonable certainty, that the spark arrester was in such condition, then you should answer the question, ‘No.’ ”

The court then instructed that if they were so satisfied they should answer the question, “Yes,” and that if the testimony should be evenly balanced on this issue...