Burrows v. Delta Transp. Co.

• Decision Date: 01 October 1895
• Court: Michigan Supreme Court
• Parties: BURROWS v. DELTA TRANSP. CO.

64 N.W. 501

106 Mich. 582

BURROWS v. DELTA TRANSP. CO.

Supreme Court of Michigan

October 1, 1895

Error to circuit court, Bay county; Andrew C. Maxwell, Judge.

Action by George L. Burrows, survivor of himself and Amasa Rust deceased, against the Delta Transportation Company. Judgment for defendant. Plaintiff brings error. Reversed.

Hanchett & Hanchett, for appellant.

Simonson Gillett & Courtright, for appellee.

LONG J.

This action is brought under Act No. 183, Pub. Acts 1881, entitled "An act to compel steam vessels navigating the waters of the state to provide fire screens for smokestacks, and to provide a penalty for its violation," being sections 2033 and 2034, How. Ann. St. On November 25, 1890, the plaintiff and Amasa Rust, since deceased, owned and had piled on the dock on the east bank of the Cheboygan river, at Cheboygan, a large quantity of pine lumber, of the value of $50,000 and upward. The lumber had stood upon the docks during the summer, and had become seasoned and dry. The defendant owned and operated a steamboat called the Minnie M., which was run between Cheboygan and Sault Ste. Marie carrying freight and passengers, and which used wood for fuel, and had no fire screen of any kind attached to her smokestack. On the morning of November 25, 1890, the boat lay at McArthur's dock, on the west side of the river, some 1,200 feet above the lumber in question; and, about 5 o'clock in the morning of that day, she was fired up with pine slabs, left the dock, and passed down the river on her course and by the lumber in question. The river at this point was about 220 feet wide. At the time of her passing, a strong wind was blowing from the west, and, about 15 or 20 minutes after the boat passed down, the lumber was seen to be on fire. It was entirely consumed.

The plaintiff, to establish his claim, called several witnesses, who testified substantially as follows:

Charles J. Kitchen: That he was master of the tug C. B. Strohn, which lay on the east side of the river, above the Minnie M.; that he saw the Minnie M. winding at McArthur's dock; that his attention was attracted to her by fire coming out of her smokestack; that there was a large volume of sparks escaping from the stack going across the river, eastward; that he watched her until she got around with her stern pretty well up the river, watched her five or six minutes, may be longer; that there were lots of sparks coming from the Minnie M. at that time, more than there ordinarily are when they are starting up the fire; and that there were more sparks than he ever saw coming out of the smokestack of a steamboat.

Paul Verette: That he was a policeman for nearly six years in Cheboygan, and while on his watch, about half past 4 o'clock on that morning, he was standing on the bridge which was above where the Minne M. lay; that he saw her as she was just leaving McArthur's dock, and saw her four or five minutes; that the sparks coming out of her smokestack drew his attention; that there was a lot of them, and there was a pretty high wind right across the river from the northwest towards the southeast; that the sparks coming out of the stack were going across the river among the lumber piles on the east side of the river; that, when he last saw the boat, she was passing Nelson's mill (Nelson's mill and the Cheboygan Lumber Company's mill are the same), and was throwing sparks at that time which were going towards the lumber piles. The sparks were coming out very thick, just the full of the smokestack.

Reuben H. Mosher: That he was the captain of the tug Cuyler; that the tug passed down the river before the Minnie M., and came back, and tied up to the dock on the east side of the river, about 1,200 feet below the point where the fire broke out. He was lying down in the tug Cuyler when the Minnie M. went by him. About 15 minutes after the Minnie M. passed, he was called by Jarvis, who was aboard of the tug, and got up, and saw the fire in the first pile next to the mill. It had just started, and was about 12 feet above the dock, and about 4 or 5 feet down from the top of the pile nearest to the front of the dock towards the river.

James Taunt: That he was fireman on the tug Cuyler, and that, while she lay at the dock below the lumber, he came up on deck, and saw the Minnie M. go down the river as he came up. She was somewhere about abreast of the Cheboygan Lumber Company's mill. Sparks were coming out of her smokestack about the full of the smokestack. He called the attention of Mr. Harrington, who also looked out. Taunt continued to look at the Minnie M. until she passed the Cuyler. The sparks which he saw coming from the smokestack were going right into the lumber on the east side of the river, into the two piles below the mill.

Dewitt C. Harrington, the engineer of the tug Cuyler, testified that Mr. Taunt called him out to see sparks coming out of the Minnie M. He went on deck, and saw sparks coming out of the smokestack of the Minnie M., an unusual amount coming out,-some big ones and some little ones. They were going across the river to the east side. He continued to watch the boat until she got past the Cuyler. The sparks continued to come out of her during the whole time she was going down the river. As the sparks went to the east side of the river, some of them went onto the piles, some of them went into them, and some over them. Some 10 or 15 minutes afterwards the alarm was given. He went on deck to see the fire. He saw sparks going in at about the place where the fire was in the lumber.

George Adams, who was engineer on the city waterworks, and was on watch at the waterworks at the time, testified that he saw the Minnie M. going down the river; saw her after she left the dock until she got out to the end of the lumber piles going out of the river; and saw her throwing fire out of her smokestack, quite a good deal of it, during the whole time he saw her. About 15 or 20 minutes after the Minnie M. went down the river, he saw the fire in the lumber piles.

The sparks, as he saw them coming out of the stack, were going across the river towards the lumber piles.

After the above witnesses had testified, the plaintiff called Thomas McGarraty, who had had 12 years' experience as captain of a tug, who testified to the use of fire screens to prevent the escape of fire, and on the subject of the different kinds of screens used. At this point the court interposed, and the following took place: "The Court Have you got any more testimony as to the cause of the fire? Counsel: Oh, yes, sir. The Court: I went down on the bridge here [in Bay City] last night, and I looked up towards Twenty-Third street bridge. It is less than a mile and a half, and it seemed to me that the evidence in on that subject is too uncertain to base a verdict on it,-the evidence as to the setting of the fire to the lumber by the Minnie M. Counsel: We except to the statement of the court. The Court: It appears that the night, while not intensely dark, was not a moonlight night, cloudy, and the sky full of scuds, and a heavy wind. I don't think that anybody from either the upper part of the river, or where this tug laid, as marked on the map, can tell with any degree or even probability that the Minnie M. set that fire, from the testimony in. Counsel: We have offered such direct testimony upon that subject as we have. The Court: Have you offered it all? Counsel: We have not offered it all, but it is all of he same kind. There isn't any other testimony that we have that will bring it closer than that. We have evidence of other witnesses relatively in the same position that the witnesses who have sworn were to the same occurrences. If that is your honor's view, our testimony could only be made stronger by having more witnesses to the occurrences. Counsel: We except to the statement of the court. The Court: What have you to say about the right of the jury to base a verdict on what there is of it? Counsel: We simply say we think it is sufficient to show the cause of the fire absolutely and conclusively. The Court: Under the statement of counsel, I shall feel compelled- I don't think it would be doing my duty to allow a verdict on the testimony to stand in favor of the plaintiff, if one was obtained. You can take such course about it as you are a mind to with that intimation. I shall feel in duty bound to instruct the jury as to the totally unsatisfactory species of evidence as to the cause of the fire. If boats on this river can be held liable upon such proof, there is no use of boats entering the Saginaw river. It would absolutely banish commerce upon this stream. Tugs are running around here, from here to the mouth of the river, and they never did, as a general thing, use spark arresters. The larger vessels never use them at all. They lie right here by the lumber docks, load lumber for days and weeks, and are passing up and down the stream every day; and I should want the most conclusive and direct proof of the fact of setting the fire, in order to allow a verdict in such case. Counsel: We except to the statement of the court. The Court: It appears from the testimony that the cut in the harbor is something more than a mile and a half. Counsel: Not over a mile. The Court: Very well. Twenty-Third street bridge is about a mile and sixty rods from the Third street bridge here. No mortal man can go onto the Third street bridge, and tell anything about the setting of fire up there, from the mere fact that sparks are escaping. Counsel: Don't understand us to concede that the witnesses were a mile away from the place. The Court: The first witness was on a bridge which was some nine hundred feet from the mill, and that was some four hundred feet from the place where the fire commenced. Counse...