Cook v. Doud Sons & Co.

• Court: Wisconsin Supreme Court
• Writing for the Court: KERWIN
• Citation: Cook v. Doud Sons & Co., 147 Wis. 271, 133 N.W. 40 (Wis. 1911)
• Decision Date: 14 November 1911
• Parties: COOK ET AL. v. DOUD SONS & CO.

147 Wis. 271

133 N.W. 40

COOK ET AL.

v.DOUD SONS & CO.

Supreme Court of Wisconsin.

Nov. 14, 1911.

Appeal from Circuit Court, Marathon County; James O'Neil, Judge.

Action by George S. Cook and another against Doud Sons & Co. From a judgment for plaintiffs, defendant appeals. Affirmed.

This action was brought to recover damages for the destruction of plaintiff's barn and other property by fire, alleged to have been caused by the emission of sparks from a traction engine while being operated by defendant on the highway near plaintiff's premises. At the close of plaintiff's case motion for nonsuit was denied, and at the close of all the evidence motion to direct verdict for defendant was denied.

The jury returned the following special verdict:

“Question No. 1. Was the fire which burned plaintiff's barn and other property caused by sparks or cinders of fire emitted from defendant's traction engine? Answer: Yes.

Question No. 2. Was said traction engine properly equipped with a spark arrester reasonably sufficient to prevent the escape of sparks and cinders? Answer: No.

Question No. 3. Did the defendant fail to exercise ordinary care in providing and using the spark arrester in use at the time plaintiff's property was burned? Answer: Yes.

Question No. 4. If you answer question No. 3, ‘Yes,’ then was such failure to exercise ordinary care the proximate cause of plaintiff's damage? Answer: Yes.

Question No. 5. What was the value of plaintiff's barn and shed addition at the time it was burned? Answer: $657.75.

Question No. 6. What was the value of plaintiff's hay at the time it was burned? Answer: $400.

Question No. 7. What was the value of the remainder of plaintiff's property that was burned at the time it was burned? Answer: $150.”

The usual motions after verdict were made and denied, and judgment entered for the plaintiff, from which judgment this appeal was taken.

P. A. Williams (B. R. Goggins, of counsel), for appellant.

Kreutzer, Bird, Rosenberry & Okoneski and E. C. Pors, for respondents.

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

It is argued that the plaintiff failed to make out a case against the defendant, and therefore judgment should have been ordered for the defendant. It is strenuously insisted by the learned counsel for appellant that there is a fatal variance between the allegations of the complaint and the evidence adduced; and, further, that the evidence is not sufficient to support the findings of the jury.

[1] The complaint charges that on the 27th of August, 1909, the defendant caused to be run on the highway by the premises in question a load of cars drawn by a traction engine which did not have upon it any sufficient or proper spark arrester, but instead was equipped with an old, defective screen, full of large holes, which had been from time to time partially but inefficiently and ineffectually repaired, as a result of which the engine, when running continually, emitted large and dangerous sparks; that there was not upon the smokebox any sufficient or adequate screen, but instead a temporary makeshift screen placed there, which was entirely ineffectual to prevent large quantities of coals, cinders, and sparks from escaping therefrom. Further on the complaint alleges: “On said 27th day of August, 1909, the said engine, while passing the plaintiff Cook's premises, and because of the failure to properly equip the same with spark arrester and smokebox screen, and because of the negligent use of wood at said time, when coal could as well have been used, emitted large quantities of sparks, cinders, and coals which were carried to the premises of this plaintiff (Cook), thereby setting fire to the same and totally consuming all of the property above described, and causing to the plaintiff damage to an amount exceeding the value thereof.”

The complaint also alleges that “the defendant could at very small cost have placed upon said engine a sufficient spark arrester and screen on the smokebox, which would have practically prevented the escape of sparks, cinders, and coals therefrom, but the defendant negligently and carelessly for a long time prior to said time omitted so to do.” There is also a separate allegation to the effect that it was practicable to have operated the engine by burning coal, instead of wood, which would have greatly decreased the danger of setting fire along the road, but that defendant operated the engine by burning wood, thereby greatly increasing the hazard of setting fire to adjoining property.

The attack made upon the complaint by counsel for appellant is that it charges negligence in wear and failure to repair, and burning wood, instead of coal, while the defect proved was negligence in design of the arrester, in consequence of which the arrester, as constructed, had a large opening at the top, through which the sparks escaped, and therefore was not a safe or proper arrester when wood was used for fuel; that it was not sufficient in point of design. The evidence shows that the arrester was in perfect shape as originally constructed. But it appears that it was constructed with a funnel so placed inside of the arrester as to leave an opening above the funnel, so that sparks in ascending could escape from the arrester, and did escape when wood was used for fuel, as was the case at the time of the fire in question.

The court below held, upon objection seasonably made, that the complaint was sufficient to admit evidence to the effect that the spark arrester was not sufficient in point of design. We are inclined to the opinion that the court was in error in its ruling in this regard, but we cannot say that the defendant was prejudiced thereby. While the complaint did not charge insufficiency in point of original construction or design, it did charge negligence in using a spark arrester which emitted sparks through openings in the arrester. The arrester was in the possession of the defendant, and its condition obviously was well known to it. And it must have known that the opening which allowed the sparks to escape was not made by wear, hard usage, or failure to repair, but by design in the construction. After objection to the evidence respecting insufficiency in design was overruled, the defendant proceeded with the trial to verdict without making any showing of surprise. The rule is well settled in this state, under our statutes and the decisions of this court, that such error must be disregarded, unless the complaining party is prejudiced by it. The appellant failed below and fails here to show that he was misled by the error.

Section 2669, Stats. 1898, provides that no variance between the allegations in a pleading and the proof shall be deemed material, unless it shall actually mislead the adverse party to his prejudice; and whenever a party claims that he has been misled that fact must be proved to the satisfaction of the court, and in what respect he has been misled, and thereupon the court may order the pleading amended upon such terms as may be just. Also section 3072m, Stats. 1898, as added by Laws 1909, c. 192, provides, among other things, that no judgment shall be reversed,set aside, or new trial granted, in any action or proceeding, on the ground of error as to matter of pleading or procedure, unless in the opinion of the court it shall appear that the error complained of has affected the substantial rights of the party seeking to reverse or set aside the judgment, or to secure a new trial. We cannot say that the error was prejudicial to the appellant, or affected his substantial rights.

[2] It is further insisted by appellant that the evidence is insufficient to support the findings of the jury on the following points, viz.: That the spark arrester was insufficient in point of design; that the defendant failed to exercise ordinary care in providing and using the spark arrester, or that the failure to exercise ordinary care was the proximate cause of the damage; that the defendant's engine set the barn fire.

We are unable to adopt the views of counsel for appellant that the findings are not supported by the evidence.

The spark arrester was put in evidence below, and is before us in this court. It shows that in construction a large opening was left between the screen and top of the funnel. There is abundance of evidence that this engine, so equipped and burning wood, was usually setting fires by means of sparks emitted when the weather was very dry. Some of the fires were set 40 or 50 feet from the road where the engine traveled; one about 5 rods, and one from 150 to 200 feet, from the road. There is also evidence that such a spark arrester, with such an opening as the one in suit, was not a suitable contrivance where wood was used for fuel, but that the arrester should be screened all over. There is also evidence that the engine was made for use of either wood or coal. One witness testified that the spark arrester was a coal arrester, because an opening is required for coal, and...