Gibbons v. Wis. Val. R. Co.

• Decision Date: 15 May 1886
• Citation: 66 Wis. 161,28 N.W. 170
• Parties: GIBBONS v. WISCONSIN VAL. R. CO.
• Court: Wisconsin Supreme Court

66 Wis. 161

28 N.W. 170

GIBBONS

v.WISCONSIN VAL. R. CO.

Supreme Court of Wisconsin.

May 15, 1886.

Appeal from circuit court, Wood county.

G. W. Cate, for respondent, Robert B. Gibbons.

C. W. Briggs, for appellant, Wisconsin Val. R. Co.

COLE, C. J.

This is the third appearance of this case in this court. See 58 Wis. 335;17 N. W. Rep. 132;62 Wis. 546; and 22 N. W. Rep. 533. On the last trial there was no attempt to sustain the liability of the defendant on the ground that there was any defect in its engines, or any negligence in their management. The plaintiff claimed that the fire which occasioned the loss was caused by sparks or coals of fire escaping, either from engine No. 6, on the freight train, or engine No. 5, of the passenger train, which passed the station a little later in the forenoon. The trial court, in its charge to the jury on this point, said: “The undisputed evidence is that the defendant's engines numbers five and six were both, on the day in question, in safe and perfect condition in all respects, and that they were in charge of competent engineers, and properly managed, and you are instructed that such facts are conclusively proven.”

The other ground of liability relied on was the negligence of the defendant in allowing combustible material, consisting of hemlock bark, old ties, and other dry rubbish, to accumulate and remain on or near its track or right of way, where it was liable to be set on fire by sparks and coals of fire escaping from its engines, even when properly constructed and skillfully managed. There was no direct evidence as to where or how the fire originated which destroyed the plaintiff's lumber. The plaintiff claims, and attempted to prove, that the fire started in a pile of ties near the track, and extended thence through the dry debris east to this lumber. There was no one about the station when the fire was first discovered, a short time after the passenger train had left the place. The counsel for the defendant insists that the fire could not have been caused by sparks or live coals escaping from either engine, because of the time which elapsed after they left the place and before it was discovered by any one. He says a spark or live coal lighting on this combustible material would, according to the evidence, at once, or in a very few moments, emit smoke or blaze so that it would have been visible to the persons present at the station after the passenger train passed. Therefore he insists the fire must have originated in some other way. But, in the absense of all proof that the fire was caused by some other agency, the jury were justified, we think, in finding that it was set by the defendant's engine. From the nature of things, no one could tell to a minute how long a spark or live coal would smoulder in this debris before it would burst into a visible flame. The witnesses naturally disagree in their opinions or conjectures on this subject. The most probable hypothesis, however, to account for the fire is that it originated from sparks escaping from the defendant's engines, and lodging in the dry, combustible material on the right of way. There was evidence that engine No. 5 had set fires two or three days prior to and the day after the fire which destroyed the plaintiff's lumber; and it was for the jury to determine, upon the evidence, whether this or the other engine did set the fire on the third of May.

It was an indisputable fact that the depot grounds and right of way, in the immediate vicinity where the fire was claimed to have originated, was incumbered with a great quantity of combustible material and dry debris, which would readily ignite if a spark or live coal lighted upon it; and the circuit court fairly and rightly submitted the question whether, under the circumstances, it was negligence for the defendant to permit its right of way and grounds to remain in that condition. The jury were clearly and distinctly instructed that in order for the plaintiff to recover they must be satisfied, by a fair preponderance of the evidence, that the defendant was not only guilty of negligence in allowing its grounds and right of way to be in that condition, but that this negligence was the proximate cause of the destruction of plaintiff's lumber, and that the plaintiff himself was without fault. This ruling was in accord with the doctrine of this court as announced in this case on the first appeal, and in other decisions. It is most emphatically stated by Mr. Justice ORTON, in the opinion in 58 Wis., “that it is a question of fact for the jury whether, in any particular place, it was negligence to so leave such...