Clifford v. Minneapolis, St. P. & S. S. M. Ry. Co.

• Decision Date: 15 December 1899
• Court: Wisconsin Supreme Court
• Parties: CLIFFORD ET AL. v. MINNEAPOLIS, ST. P. & S. S. M. RY. CO.

105 Wis. 618

81 N.W. 143

CLIFFORD ET AL.

v.MINNEAPOLIS, ST. P. & S. S. M. RY. CO.

Supreme Court of Wisconsin.

Dec. 15, 1899.

Appeal from circuit court, Oneida county; Charles V. Bardeen, Judge.

Action by William J. Clifford and another against the Minneapolis, St. Paul & Sault Ste. Marie Railway Company. From a judgment in favor of plaintiffs, and from a denial of defendant's motion for a new trial, it appeals. Affirmed.

In the summer of 1894, the plaintiffs' timber lands, situated in township 36, range 3 E., township 36, range 4 E., and township 37, range 4 E., in the counties of Oneida and Price, lying from one to seven miles north of the defendant's railroad track, were damaged by fires, and this action to recover for such damage was brought. The complaint alleged negligent setting of fires by the defendant at various undefined points along its road between about three miles east of Prentice and one mile east of Clifford, a distance of some twelve miles, but that plaintiffs were unable to specify the exact points on said track where the particular fires that damaged their property were set, or just which of said fires, and whether more than one, extended to and burned their lands. On the trial the proofs were confined to two fires, one known as “Mile-Post No. 173 Fire,” started in the northerly part of section 9, township 35, range 2 E., and the “Clifford Fire,” started near the south quarter stake of section 31, township 36, range 4 E. The amount of damage claimed was $32,571.75. There was no very serious dispute as to the fact that fires did originateat both these points from the burning of old ties by defendant's employés, and did escape from the defendant's right of way onto adjoining ground; it being, however, vigorously disputed whether both of said fires did not die out before reaching any of the plaintiffs' lands, and whether there were not other fires, of which, in the latter part of July, there were several in that region of country, which in fact caused the damage, either of themselves or by intercepting and joining with the fires originated by the defendant. After an extended trial, had in 1897, plaintiffs recovered a verdict of $2,216.65 for damage to timber, which defendant moved to set aside for errors upon the trial, and also because contrary to the law and the evidence, which motion was denied. The defendant moved to require the complaint to be made more definite and certain, accompanying the motion by an affidavit pointing out that several fires had originated along its right of way, of which it had more or less knowledge, among them the two fires afterwards relied on by the plaintiffs, and asserting that each of said fires would require the attendance of a considerable number of different witnesses not required for either of the others. That motion was overruled, and a written exception thereto filed, but neither the motion, order, nor exception was included in the bill of exceptions which has been settled in the case. The assignments of error are: (1, 2) Denial of the motion to make the complaint definite and certain; (3) refusal of instruction excluding from the consideration of the jury any damage claimed to result from the fire at mile-post No. 173; (4) refusal of requested instruction as to certainty of evidence; (5) refusal to direct a verdict in favor of the defendant as to the damage to timber lands; and (6) denial of defendant's motion for a new trial.

A. H. Bright and H. B. Dike, for appellant.

Cate, Sanborn, Lamoreux & Park, for respondents.

DODGE, J. (after stating the facts).

1. The first and second assignments of error are alleged upon the refusal of the court to require plaintiffs to make complaint more definite and certain as to the place or places where originated the fires which were claimed to have injured plaintiffs' lands, the specific acts of negligence charged to defendant, and the course pursued by a certain fire started July 7th. While it may well be that the complaint should have been more definite as to some of these matters, and plaintiffs could have made it so if they had knowledge enough to justify them in commencing suit at all, yet it must be noted that these orders now complained of, and the exceptions thereto, are not brought into the record by the bill of exceptions. They cannot, therefore, be considered on this appeal, unless they involve the merits of the action and necessarily affect the judgment. Section 3070, Rev. St.; Tronson v. Lumbering Co., 38 Wis. 202;Hewitt v. Follett, 51 Wis. 264, 8 N. W. 177;Donkle v. Milem, 88 Wis. 33, 59 N. W. 586;Keller v. Town of Gilman, 96 Wis. 445, 71 N. W. 809;McCormick v. Cleveland, 98 Wis. 522, 74 N. W. 339. The orders in question probably involved the merits, but did they necessarily affect the judgment? Defendant's affidavits, as also the evidence on the trial, make apparent its knowledge of both of the fires attempted to be proved by plaintiffs, and its preparation to meet such proof. True, the labor and expense of that preparation, as also of the trial, may well have been enhanced by uncertainty in the complaint, but this is not enough. Not every order which affects the trial or a party's convenience necessarily affects the judgment. We find it impossible to say from this record that the same judgment might not have been reached upon an entirely certain and specific complaint. The orders in question, therefore, did not necessarily affect it, and the error, if any, is not before us for review.

2. The third, fifth, and sixth assignments of error present the question whether there was any evidence which, upon the most favorable consideration, and with every reasonable inference resolved in plaintiffs' favor, might have justified the jury in finding that the two several fires reached and destroyed plaintiffs' timber. The view of the trial court is of much weight on such question. Maitland v. Paper Co., 97 Wis. 476, 491, 72 N. W. 1124;Lewis v. Prien, 98 Wis. 87, 73 N. W. 654. Especially forceful is such opinion upon a trial like this, where much of the testimony was given with reference to a map spread before the court and jury, and the finger of the witness...