Finkelston v. Chi., M. & St. P. Ry. Co.

• Decision Date: 04 November 1896
• Citation: 94 Wis. 270,68 N.W. 1005
• Parties: FINKELSTON v. CHICAGO, M. & ST. P. RY. CO.
• Court: Wisconsin Supreme Court

94 Wis. 270

68 N.W. 1005

FINKELSTON

v.CHICAGO, M. & ST. P. RY. CO.

Supreme Court of Wisconsin.

Nov. 4, 1896.

Appeal from circuit court, Dane county; Robert G. Siebecker, Judge.

Action by W. J. Finkelston against the Chicago, Milwaukee & St. Paul Railway Company. There was a judgment for defendant, and plaintiff appeals. Affirmed.

Action to recover damages for the destruction by fire of plaintiff's warehouse and store building attached thereto, which occurred on the 22d day of July, 1893, alleged to have been caused by negligence of defendant's employés. The warehouse was 40 feet long by 30 feet wide, located north of one of defendant's side tracks at Spring Green, Wis., and nearly parallel with such track. The southwest corner was about 7 feet, and the southeast corner about 14 feet, from the center of such track. It was a wooden, frame structure, 18 feet high to the top plate, with a gabled roof, one-third pitch, lengthwise of the building. There was a basement about 8 feet deep, from which, in the northwest corner, there was an elevator shaft 4 1/2 by 5 feet, extending up to and ending in a cupola constructed wholly on the north side of the ridge of the roof. The cupola was 12 feet wide by 14 feet long. The sides extended about 3 feet above the ridge of the warehouse. It was covered by a gabled roof, with ends towards the north and south. The top was about 37 feet from the ground. In the south gable, towards the side track, was a window which, there was evidence tending to show, was open at the time of the fire, and was about 30 feet above and 25 feet north of the center of the track. The sides of the warehouse and the cupola were made of boards put on perpendicular, with battens over the cracks, and the whole painted. North of the warehouse, about 3 feet, was the south wall of a brick store building, the walls of which extended several feet above the plate of the warehouse. The space between the buildings was made into a covered alley connecting them together. The alley was floored at the bottom with pine boards placed about on a level with the floors of the buildings. Sixteen feet above the lower floor was a ceiling, which also formed a second floor. About 8 feet above such second floor, and 6 feet above the plate of the warehouse, was a covering of boards extending from the wall of the store building out a little over 3 feet. On the west end, the alley was closed. On the east end, it was closed up to the second floor. On the north, it was closed by the side of the store building. On the south, it was closed from the west end east to the cupola. From the southeasterly corner of the cupola east, it was left open, to admit light to windows in the upper story of the store building. On the edge of the roof of the warehouse, next to the alley, was placed a board, projecting up so as to form a gutter, the base of which was lined with tin. The openings in the warehouse were as follows: On the side towards the railway track, in the basement, there were three open windows. On the first floor, about the middle, was a door. There were also three grain spouts from bins on the second floor, closed at the lower ends, outside the building, by slides. On the east end, in the basement, were two open windows, and a way, constructed to admit of taking barrels in and out, which was covered by a slanting door. On the first floor, about the center, was a door. North of that was a window, and there was also a window opening into the alley. On the south side of the door was an opening for taking in corn, which was closed by a sliding door. In the gable, near the roof, was a window, and in the east side of the cupola, near the northeast corner, was a window. On the north side, on the lower floor, near the middle, was a door leading from the alley, and near the west end of the alley was another door from the alley. On the second floor of the alley was a door leading from such floor into the warehouse on a level with the plate. In the west end of the gable was a window. The sides of the elevator shaft, on the outside of the posts forming the framework of it, were sheathed with pine boards, except where the openings existed hereafter mentioned. The north side was formed by the side of the warehouse; the west, by the side of the wool room; the south, by the side of the buckwheat bin; and the east side, between the level of the plates and the second floor, by the oat bin. Inside the elevator was sheathed with 7/8-inch flooring on the north, south, and west. On the east side it was open in the basement, on the first floor, and above plates in the second story. On a level with the top of where it was so closed on the east, there was a passageway leading from the opening on the second floor of the alley to the center of the warehouse, and there connecting with a passageway, running at right angles, lengthwise of the building, from end to end, on a level with the plate. All of the upper story, except that part occupied by the elevator shaft, was divided into bins, the top of which was on a level with the passageway. On the south side of such way were three bins of equal size, built hopper shape, in each of which there was some wheat at the time of the fire, two being nearly full. In the northeast corner was a corn bin partly filled with corn. The balance of the space on that side, up to the elevator shaft, was an oat bin, about half full of oats. The space between the elevator shaft and the wheat bin in the southwest corner was a small bin for buckwheat, which was empty. West of the elevator shaft, occupying the balance of the upper story of the building, in the northwest corner, was a wool room, nearly empty, which was closed in on all sides from every other part of the building. The lower story was, to some extent, partitioned off, but there was no partition north of the center of the floor and east of the elevator shaft. On the day before the fire the elevator was thoroughly cleaned and dusted out, from the cupola down, except the basement. The building was in an exceedingly dry condition, owing to a long-continued period of excessively hot, dry weather. The wind was blowing from the direction of the side track toward the building. The situation being as described, at 7:30 p. m. on the 22d day of July, 1893, one of defendant's freight trains was run in on the side track till the locomotive stood alongside of the warehouse. While it was in that position, there is evidence tending to show that it was so operated by defendant's servants that coals of fire and ashes were allowed to escape from the firebox to the ground, and sparks in considerable quantities to escape from the smokestack. About 8:15 p. m. the locomotive was backed away from the building, at which time, there is evidence tending to show, the engine was operated in such a way that the wheels slipped on the track, and that sparks were emitted from the smokestack in large and unusual quantities, and of an unusual size, some appearing, to one looking at them through the darkness, to be as large as a man's thumb, and thrown to a height of 30 to 40 feet; that they were carried by a light wind towards the warehouse, some of them settling on the roof and others passing over it. There is a very little conflict in the evidence respecting the time when the freight engine backed away from the warehouse. It was not later than 8:17 p. m. The passenger train from the west was due at 9:49 p. m. On the evening in question it was late, and, according to the evidence, did not arrive earlier than 9:55 p. m. Witness J. G. Keller, while on his way to the 9:49 p. m. train, heard the alarm of fire first given. He testified that the train came from the west a few moments thereafter. There is some conflict in the evidence respecting the exact time when the fire was first discovered, but all the evidence shows that it was a short time before the arrival of the train from the west, and about the time it was due, viz. 9:49 p. m. The evidence is conflicting respecting the location of the fire when first discovered. There is considerable evidence tending to show that it was in the lower story of the warehouse; also, evidence tending to show that it was first seen in the lower part of the alley, looking through the window in the east end, and that soon thereafter it was seen in the upper part of the building. A large amount of other testimony was given tending to show that the fire started in the lower part of the structure, that it was very small when first discovered, that very soon after the discovery the alarm was given, and that soon the whole building was enveloped in flames. The building and contents, and the store building attached, with part of its contents, were destroyed. At the close of the evidence, on motion of counsel for defendant, the court directed a verdict in its favor, in the main upon the following grounds: (1) That the evidence is insufficient to show that the fire was caused by the defendant; (2) that the evidence is insufficient to show that defendant's engine was not in a proper state of repair at the time of the fire; (3) that the evidence was insufficient to show that the engine was improperly operated. Plaintiff's counsel then moved the court to set aside the verdict, and for a new trial, upon the grounds, among others, that the court erred in the omission and rejection of testimony, and that the verdict was contrary to the law and the evidence. The motion was overruled, and judgment was entered in favor of the defendant, from which this appeal was taken.

Winslow and Pinney, JJ., dissenting.

Olin & Butler, for appellant.

Burton Hanson, R. M. La Follette, and George W. Bird, for respondent.

MARSHALL, J. (after stating the facts).

If there is anything in this case to warrant the inference that the destruction of plaintiff's property was caused by fire which proceeded from defendant's locomotive, it consists of evidence tending to show that sparks in unusual...