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

• Decision Date: 22 March 1898
• Citation: 74 N.W. 561,98 Wis. 624
• Court: Wisconsin Supreme Court
• Parties: COOK ET AL. v. MINNEAPOLIS, ST. P. & S. S. M. RY. CO.

98 Wis. 624

74 N.W. 561

COOK ET AL.

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

Supreme Court of Wisconsin.

March 22, 1898.

Syllabus by the Judge.

1. A fire started by defendant's negligence, after spreading one mile and a quarter to the northeast, near plaintiffs' property, met a fire having no responsible origin, coming from the northwest. After the union, fire swept on from the northwest to and into plaintiffs' property, causing its destruction. Either fire, if the other had not existed, would have reached the property and caused its destruction at the same time. Held:

(1) That the rule of liability in case of joint wrongdoers does not apply.

(2) That the independent fire from the northwest became a superseding cause, so that the destruction of the property could not, with reasonable certainty, be attributed in whole or in part to the fire having a responsible origin; that the chain of responsible causation was so broken by the fire from the northwest that the negligent fire, if it reached the property at all, was a remote and not the proximate cause of the loss.

2. After the fire swept everything of a combustible character clean, on both sides of defendant's right of way, plaintiffs' horses, that were running at large, went upon the railway track and were killed by a passing train without negligence on the part of the train men. The right of way had never been fenced as required by law. Held:

(1) That the rule of absolute liability, under the statute requiring railway companies to fence their tracks, applies only where the loss is produced, in whole or in part, by reason of the failure to fence.

(2) That in the circumstances stated the chain of causation reaching from the failure to fence was broken by the fire that would unquestionably have destroyed the fence if it had existed, so that the failure to fence cannot be said to have contributed to the entry of the horses upon the railway track.

3. The rules require the printing of a case by the appellant, and one brief on each side, on appeal to this court; they also permit a reply on each side. Costs as of right, for printing, are limited to such as are reasonably necessary or permitted under the rules.

Appeal from circuit court, Marinette county; S. D. Hastings, Jr., Judge.

Action by Wallace P. Cook and another against the Minneapolis, St. Paul & Sault Ste. Marie Railway Company. There was a judgment for plaintiffs, and defendant appeals. Reversed with directions.

The complaint sets forth four causes of action at law:

(1) For compensation for the destruction by a fire on the 20th day of May, 1893, of a lumber camp, several buildings, the camp equipage for a large number of men, some lumber, and a quantity of posts, poles, ties, slabs, and other personal property at Corliss, Wis., of the alleged value of $58,820.79, upon the ground that a fire was started at a point on defendant's right of way about a mile and a quarter southwest of such property by the escape of cinders from one of defendant's engines to dry, combustible material negligently left on its right of way, which fire spread to such property and did the mischief complained of.

(2) To recover for the loss of two horses of the value of $500, killed May 20, 1893, by one of defendant's engines on its right of way, where such horses strayed because defendant failed to fence such right of way as required by law.

(3) To recover compensation for the loss of one horse of the alleged value of $225, killed by one of defendant's engines on its right of way, on the 13th day of March, 1892, where it strayed because defendant failed to fence such right of way as required by law.

(4) To recover compensation for the loss of a cow of the alleged value of $50, killed the 27th day of August, 1892, by one of defendant's engines on its right of way, where it strayed because defendant failed to fence such right of way as required by law.

The judgment prayed for was $60,825, with costs.

The answer put in issue the origin of the fire alleged to have destroyed the property mentioned in the first cause of action, the value of such property, and also all other disputed matters covered by the verdict, hereafter mentioned. On the trial facts were admitted entitling plaintiff to recover on the third and fourth causes of action, and there was no controversy upon the evidence but that the horses mentioned in the second cause of action were killed by one of defendant's engines as alleged, and that defendant failed to comply with the laws of this state in respect to fencing its right of way. The circumstances leading up to the entry of the horses upon the right of way were that, because of danger of the destruction of the stables where the horses were located on the 20th day of May, 1893, they were turned loose and driven towards a place of safety away from the defendant's track; that later in the day and after the fire had swept over the country up to the right of way, the horses returned to the vicinity of their stables and in doing so went upon the defendant's track and were killed by a passing engine, which was going very slowly on account of existing conditions in regard to smoke and recent burning.

As to the origin of the fire which destroyed the plaintiffs' property, there was evidence tending to show that, about 9 o'clock on the morning of the 20th of May, 1893, a fire was started in some way by a passing engine, in combustible material on the defendant's right of way near Boom Hill, a mile and a quarter southwest of Corliss, where plaintiffs' property was located; that the wind at that time was blowing from the south and southwest; that the fire spread for a time in a northerly and northeasterly direction, carried by the wind blowing from the south and southwest; that towards noon the wind changed to the west; that between twelve and one o'clock the wind changed so as to blow from a northwesterly direction, and increased to a gale; that at the time the fire was spreading north from Boom Hill as stated, there was a fire some distance northwest of plaintiffs' property, which, as the wind changed to the west and northwest and increased to a gale, was carried southeasterly and easterly to the vicinity of such property, so as to meet the line of fire from the southwest before that reached said property; thereafter and about 1 o'clock, carried by the strong gale of wind aforesaid, fire swept down from the west and northwest, to and into said property, and caused the destruction complained of.

The court instructed the jury in substance, among other things, that if they found that the fire set by the defendant's engine was attributable to its negligence, and was the sole cause of the destruction of plaintiffs' property, they were entitled to recover the entire damage they thereby sustained; that if the jury found that the negligence of the defendant contributed to produce the fire which caused the damage, and that there were other fires which also contributed to the loss, and they could figure out what amount of such damage resulted from the fire originated from such negligence, they might do so.

The jury rendered a special verdict in substance as follows:

(1) The defendant's engine No. 403 set fire on its right of way at a place called Boom Hill, on the morning of May 20, 1893.

(2) The fire spread to plaintiffs' cedar yard and camp at Corliss, and set fire to the same.

(3) There was another fire which came from the northwest at the same time and was driven into the plaintiffs' yard and camps and set fire to the same.

(4) The fire which came from the northwest united with the fire set by defendant's engine before reaching the cedar yard.

(5) Defendant's engine was properly constructed and equipped to prevent the escape of sparks and cinders, and it was in good condition and properly managed.

(6) Defendant was guilty of negligence on account of the condition of its right of way where the fire started, which caused, or contributed to, the starting of the fire.

(7) There was a want of ordinary care on the part of the defendant, which caused the fire to start on its right of way.

(8) Such want of ordinary care consisted in not keeping the right of way reasonably clear of combustible material.

(9) Plaintiffs' damage, caused by the fire started by defendant's negligence, we assess at 50 per cent. of their claim, less the insurance, amounting to $26,182.93.

Defendant's counsel made several motions to correct the verdict and for judgment thereon; also a motion for judgment on the verdict and the evidence, dismissing the complaint as to the first cause of action, also as to the second cause of action; also a motion, in effect, for such judgment in its favor as the court might decide it was entitled to on the verdict; also for an order setting aside the verdict as contrary to the evidence and for other reasons, and granting a new trial. All of such motions were denied and due exceptions to the denials taken. Plaintiffs' counsel moved on the verdict for such judgment as the court might decide they were entitled to. On such motion the court construed the verdict of the jury as apportioning the fire loss equally between the fire originated by the defendant and the fire that came from the northwest, which was of unknown origin, upon the theory that as the fires united and entered the yard together, only half of the loss was attributable to the negligence of the defendant. As a matter of law the court held that as defendant's negligence in starting the Boom Hill fire contributed to produce the loss, it was responsible for the entire damage, measured by the reasonable value of the property destroyed, and legal interest thereon from the date of the fire. Thereupon judgment was ordered for the entire value of the property destroyed, less the insurance received, such value on the verdict, under the charge, being computed by the court at $55,865.87, and the insurance $1,750. Judgment was also ordered for the value of the two...