Day v. H. C. Akeley Lumber Co

• Decision Date: 07 September 1893
• Citation: 56 N.W. 243,54 Minn. 522
• Parties: John W. Day et al. v. H. C. Akeley Lumber Co
• Court: Minnesota Supreme Court

56 N.W. 243

54 Minn. 522

John W. Day et al. v. H. C. Akeley Lumber Co

Supreme Court of Minnesota

September 7, 1893

Argued June 27, 1893.

Appeal by plaintiffs, John W. Day, et al., from an order of the District Court of Hennepin County, William Lochren, J., made February 9, 1893, denying their motion for a new trial.

The plaintiffs, John W. Day and partners as J. W. Day & Co. operated a steam sawmill on the right bank of the Mississippi River in North Minneapolis, and had in connection therewith a large yard, seventeen acres, in which they piled their lumber. Adjacent on the north, the defendant, the H. C Akeley Lumber Company, a corporation, had a similar mill and yard. These steam mills burned their sawdust and refuse to generate steam for their engines and machinery. But all of it was not required and the surplus of sawdust, bark, shavings and refuse was conveyed to burners constructed for the purpose, and there consumed to get rid of it. The defendant had in its mill eleven boilers in one part with a smokestack of boiler iron, nine feet in diameter and over a hundred and forty (140) feet high. In another part it had four boilers with smokestack five feet in diameter. On the top of these smokestacks were nettings of wire cloth, twelve feet high, to arrest cinders and sparks. Its burner was some twenty feet distant from the mill. It stood on a stone foundation and was of boiler iron, lined inside with fire brick. It was twenty-six feet in diameter and about one hundred feet high and covered with a dome or hood of wire netting, twenty feet high, to arrest sparks and cinders. The sawdust and refuse were carried by an endless chain or conveyor into this burner through an aperture twenty feet above the ground and fell onto a grate, covering the whole diameter and located some four or five feet above the stone base. Doors for draft opened into the burner underneath this fire grate.

On May 20, 1891, and the night following, defendants had the boilers and burner in operation. It was a dry time and the wind was from the north. About three o'clock in the morning of May 21st, the lumber in the yard of J. W. Day & Co. took fire and was consumed. The loss was adjusted at $ 207,134.31. That firm claimed that the loss was caused by the negligence of the defendant in the management of the fires in its burner and smokestacks, and in failing to keep the netting on their tops in repair. The firm were insured $ 126,500 in sixty-four different fire insurance companies. These companies paid this amount, and under provisions in the policies, had an interest in the claim and united with the firm in the prosecution of this action against the H. C. Akeley Lumber Co. to recover the $ 207,134.31. The issues were tried June 22, 1892. Plaintiffs asked their witness, W. H. H. Day, what in his opinion would have been the effect upon the quantity of sparks and cinders emitted from the Akeley smokestacks and burner, if defendant had turned its exhaust steam in. To this defendant objected, and the answer was excluded, and plaintiffs excepted. This is plaintiffs' fourth specification of error mentioned in the opinion. Defendant had a verdict. Plaintiffs prepared and settled a bill of exceptions and moved for a new trial, but were denied, the court saying, among other things:

"The question asked of the witness, W. H. H. Day, as to his opinion about the effect upon the quantity of sparks and coals emitted from the Akeley smokestack and burner which would result from turning in the exhaust steam was rightly excluded. The question called for the opinion and conjecture of the witness."

"The part of the charge objected to is that portion where, after referring to the testimony about the notice given to Mr Akeley and Mr. Farr as to previous fires, the court added: 'I think the testimony does not show that any specific defect was pointed out to those gentlemen by Mr. Day or Mr. Robinson or any one else. But the general fact was stated to them that the property was endangered by the burner. I think there is no testimony that any specific defect either in the stacks or in the burner was mentioned or pointed out.'

"The testimony which plaintiffs claim is ignored by this portion of the charge is, that of the witness, W. H. H. Day, where he speaks of being near the Akeley burner shortly before the fire, and seeing and sending for Mr. Farr. He proceeded: 'When he came down where we were, the fuel burner, the top of it, was all of a blaze, a flame of fire going out through it, and I called his attention to it. He didn't say much about it. I says, Mr. Farr, that smokestack there, that fuel burner, is in bad shape, and something ought to be done to it. He said it was not in bad shape at all. I says, there is holes through it there, you can see it, you can see it with the naked eye. He said there wasn't any. I says, well, yesterday we had seven fires in our yard, and you didn't pay any attention to it,' etc.

"The calling of Farr's attention to the fact that a blaze was passing out through the top of the burner, was not calling his attention to any specific defect. Blaze, as well as smoke, would pass through meshes fine enough to arrest sparks. Saying it was in 'bad shape' did not call attention to any specific defect. Neither did the statement that there were holes through it, that could be seen with the naked eye. This was a mere general assertion of defective condition by having holes. It was not a mentioning, pointing out, or calling attention to, any specific defect, any particular hole or holes. The testimony was just this, that Day told Farr that the top of the fuel burner had holes in it that could be seen with the naked eye, but did not mention or point out any in particular, and Farr denied that it had any holes. To amount to notice, the particular defect, if any existed, should have been pointed out, or mentioned in such a way as to describe and designate it, and thus had attention directed to it. The statement to the jury was therefore strictly accurate."

Order affirmed.

R. W. Barger and Koon, Whelan & Bennett, for appellants.

The court erred in refusing to give to the jury the first instruction asked by the plaintiffs, as follows: If the jury believe from the evidence that the defendant erected on its land near to the lumber yards of J. W. Day & Co. after said yards had been established and were being used as such, a refuse burner, and that said burner, on account of its nature, use and operation and essential character, was dangerous, and necessarily tended to the damage of the property of others in that immediate vicinity, and that on May 21, 1891, fire escaped therefrom and was carried by the wind upon the lumber yard of J. W. Day & Co., and there burned and consumed their lumber; then defendant is liable to the plaintiffs in this action for the value of the lumber so destroyed. Lawton v. Giles, 90 N.C. 374; Aycock v. Raleigh & A. A. L. Co., 89 N.C. 321; Cahill v Eastman, 18 Minn. 324, (Gil. 292;) Mullen v. St. John, 57 N.Y. 567.

Plaintiffs offered to show that immediately after the fire occurred, the defendant shut down its mill, stopped its burner, and under the direction of the building inspector of the City of Minneapolis, repaired its burner by closing the holes therein, and also placing a bell-shaped netting on their smokestacks, covering them completely. This evidence was excluded. O'Leary v. City of Mankato, 21 Minn. 65; Phelps v. City of Mankato, 23 Minn. 276; Kelly v. Southern Minn. Ry. Co., 28 Minn. 98.

It is claimed, however, that this court overruled these decisions in Morse v. Minneapolis & St. L. Ry. Co., 30 Minn. 465. The point there decided does not militate at all against the admission of the evidence sought to be introduced in the case at bar. The repairs sought to be shown in this case were made immediately after the fire, and were finished within eleven days after the fire occurred. Pennsylvania R. Co. v. Henderson, 51 Pa. St. 315; West Chester & P. R. Co. v. McElwee, 67 Pa. St. 311; McKee v. Bidwell, 74 Pa. St. 218; Dale v. Delaware, L. & W. R. Co., 73 N.Y. 468; Emporia v. Schmidling, 33 Kan. 485.

Under the circumstances the failure of defendant to discover defects in the burner, and make the same safe, amounted to gross negligence. Hoyt v. Jeffers, 30 Mich. 181; Kendrick v. Towle, 60 Mich. 363; Parker v. Boston & H. S. Co., 109 Mass. 449.

J. M. Shaw and Kellogg & Leybourn, for respondent.

The plaintiffs' request to charge, eliminates from the case altogether the element of negligence, and places plaintiffs squarely upon the footing that the bare fact, that the fire which consumed plaintiffs' lumber, emanated from the works of the defendant, was sufficient, without more, and without regard to any allegation or question of negligence absolutely to charge the defendant with all damages to the plaintiffs, resulting from such fire. But we cannot agree with the plaintiffs that their request is a...