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

• Citation: 103 N.W. 1097,125 Wis. 528
• Court: United States State Supreme Court of Wisconsin
• Decision Date: 23 June 1905
• Parties: COOK ET AL. v. MINNEAPOLIS, ST. P. & S. S. M. RY. CO.

125 Wis. 528

103 N.W. 1097

COOK ET AL.

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

Supreme Court of Wisconsin.

June 23, 1905.

Appeal from Circuit Court, Marinette County; Samuel D. Hastings, Judge.

Action by Wallace P. Cook and another against the Minneapolis, St. Paul & Sault Sainte Marie Railway Company. From a judgment for plaintiffs, defendant appeals. Affirmed by divided court.

Appeal from the circuit court for Marinette county. Action to recover damages for breach of contract. The claim of the plaintiffs was, in the main, that the defendant breached its contract to furnish up to 20 cars per day to enable plaintiffs to ship cedar products delivered by them along its railroad track for that purpose at a station known as Corliss, where, by reason of conditions in the vicinity thereof, such products were exposed to great hazard of destruction by railroad and forest fires, and whereby the cedar was destroyed on the 20th day of May, 1893, damaging the plaintiffs in the sum of $43,710.79; that the special circumstances creating such extraordinary hazard were known to the defendant at the inception of the contract; that the contract was made with special reference thereto, and that the loss which finally occurred was such as both parties at such inception had reasonable ground to expect would be likely to occur in the event of such a breach. It was further claimed that plaintiffs agreed to furnish the cedar for shipment over defendant's line upon condition of its agreement to furnish the facilities for moving the same, as indicated, so that the property could be quickly removed beyond the scope of the extraordinary hazard mentioned. There was a further claim that the destruction of the property was caused, in part, by the fault of the defendant in allowing fire to escape from one of its locomotives and by reason of the condition of its right of way. The claim of defendant was, in the main, that it did not make the contract alleged in the complaint; that if it were otherwise the cause of action sued on accrued more than six years before the commencement of the action by reason of defendant's repudiation of the contract or refusal to perform it; that the fire was of such extraordinary character, even under the circumstances claimed by plaintiffs to have existed and been brought to defendant'sattention at the inception of the contract, that the event which destroyed the cedar was highly exceptional; that the cause of action was barred by the statute of limitations; also by a former action brought to recover the same damages on the ground of negligence of defendant in setting out the fire which caused the loss, which action proceeded to judgment in favor of the defendant prior to the commencement of this action; and further that the cause of action was lost by an election to rely upon the former action.

In the light of the foregoing the issues material to the rights of the parties raised by the pleadings, as the court viewed the same, sufficiently appear by the special findings of the jury in respect thereto, which in brief, omitting such as need not be stated but preserving the appropriate numbers of those which are stated, are as follows: (1) Plaintiffs and defendant, the latter acting by H. L. Shute, in September, 1892, upon condition of the former getting out their cedar and delivering the same on defendant's siding at Corliss during the fall and winter, agreed to promptly transport the same away therefrom furnishing to that end, as requested by plaintiffs, as many as 20 cars per day. (2) Mr. Shute at the inception of the contract knew and was informed, in a general way, of the conditions in and about Corliss as to danger from forest and railroad fires. (3) Such agreement was made in view of and with direct reference to such dangers. (7) Pursuant to such agreement on and after about April 20th or 21st plaintiffs ordered 20 cars per day. (8) Defendant failed to comply therewith. (9) Defendant did not repudiate nor notify plaintiffs that it...