Brusberg v. M., L. S. & W. Ry. Co.

• Decision Date: 10 May 1882
• Citation: 55 Wis. 106,12 N.W. 416
• Parties: BRUSBERG v. M., L. S. & W. RY. CO.
• Court: Wisconsin Supreme Court

55 Wis. 106

12 N.W. 416

BRUSBERG

v.M., L. S. & W. RY. CO.

Supreme Court of Wisconsin.

Filed May 10, 1882.

Appeal from circuit court, Outagamie county.

George W. Burwell, for respondent.

Cottrill, Carey & Hanson, for appellant.

TAYLOR, J.

This action was brought by the respondent to recover damages of the appellant company for negligently setting fire to his barn and other buildings, thereby destroying the same with their contents. This case has been in this court before, and the judgment in favor of the plaintiff was reversed for error in the instructions of the court. 50 Wis. 231.^a1 None of the questions raised on this appeal were commented upon or decided on that appeal. The learned counsel for the appellant insists that there was no evidence on the part of the plaintiff to sustain the verdict, and that his motion for a nonsuit should have been granted. He also takes exceptions to certain evidence offered and received on the part of the plaintiff, and to instructions given to the jury. It is strenuously insisted that the court should have nonsuited the plaintiff, because the company proved that the engine at the time was a perfect engine in all respects, and was provided with suitable appliances in every respect for preventing the escape of coals and fire when running upon the road, and because the persons in charge of the engine and train at the time it is alleged the fire was communicated therefrom to the plaintiff's barn, testified that the engine was run in a careful manner; that the spark arrester, or screen on the top of the smoke-pipe and the fire-box was closed at the time, so that no coals or sparks of a dangerous kind could escape therefrom. Had this been the only evidence in the case, and the plaintiff had rested his right to recover upon proof that his barn was burned by fire communicated by the passing engine, without giving any positive proofs as to how the fire was communicated from the engine to the barn, there would have been a foundation for the claim of the learned counsel for the appellant that a nonsuit should have been granted, and the case would probably have been brought within the rule laid down by this court in Spaulding v. Ry. Co. 30 Wis. 110, and 33 Wis. 582. In the case at bar the plaintiff did not rely upon evidence which merely raised a presumption that the fire was communicated by the passing engine, but he proved by the testimony of several witnesses that the fire was in fact so communicated, and the way and manner of its communication. He proved by several witnesses that when the engine passed the barn in question at the time the fire was communicated, it was not only emitting sparks in great numbers, but also coals an inch or more in length, and that such sparks and coals struck against the barn and some of them went under it; that coals of a similar size were seen immediately after on the track and snow beside the track in the immediate vicinity of the barn; that several stumps a short distance east of the barn, on the line of the railroad track and near the same, where the same engine had passed, were on fire a short time after it passed, and it was also shown by the testimony of some of the officers of the company that if the engine had been properly run and cared for by those in charge of it at the time, no coals of the size spoken of by the plaintiff's witnesses could have escaped therefrom, and that if they did escape it would indicate that the engine was not properly constructed, or that it was not properly handled.

With this evidence before it, it is very clear that the court was right in refusing to nonsuit the plaintiff. The credibility of the testimony of the several witnesses was a matter for the jury, and not for the court. If the plaintiff's witnesses testified truly, and coals and cinders an inch or more in length were emitted from the engine when it passed the point in question, which were carried by the wind in the direction of and upon and under the barn in question, and the barn was on fire a few minutes after the engine passed, there certainly was sufficient evidence to go to the jury upon both questions, whether the fire was communicated from the engine to the barn, and whether the engine was properly managed and run at the time, though it be admitted that the evidence on the part of the company was conclusive that the engine was properly constructed, and was furnished with the most approved appliance for preventing the escape of sparks, coals, and cinders, therefrom.

If the engine was properly made, so that when properly worked and handled by those in charge it would not and could not omit coals and cinders of the size which the plaintiff's witnesses testified they saw emitted by it at the time it passed the plaintiff's barn, and such as were found on the track and snow by the side thereof immediately after it passed, then it becomes a question of veracity between the plaintiff's witnesses and the witnesses of the defendant, who swear that the engine was properly handled and run at the time, with the screen of the smoke-stack closed, and the doors of the fire-box closed, so that such cinders and coals could not escape; and this question of veracity the court had no right to determine; its determination was for the jury, and it...