Gibbons v. Wis. Valley R. Co.

• Court: Wisconsin Supreme Court
• Writing for the Court: LYON
• Citation: Gibbons v. Wis. Valley R. Co., 62 Wis. 546, 22 N.W. 533 (Wis. 1885)
• Decision Date: 03 March 1885
• Parties: GIBBONS v. WISCONSIN VALLEY R. CO.

62 Wis. 546

22 N.W. 533

GIBBONS

v.WISCONSIN VALLEY R. CO.

Supreme Court of Wisconsin.

Filed March 3, 1885.

Appeal from circuit court, Wood county.

G. W. Cate, for respondent.

C. W. Briggs, for appellant.

LYON, J.

This case was here on a former appeal, and is reported in 58 Wis. 335, S. C. 17 N. W. REP. 132, where a sufficient statement of its main facts may be found. On that appeal a judgment for the plaintiff was reversed because of the admission of improper testimony. Another trial has been had, which also resulted in a verdict and judgment for the plaintiff, from which the defendant has again appealed.

1. The testimony on the last trial as to the condition of the two engines, one or the other of which, it is alleged, set the fire which burned the plaintiff's lumber, shows that they were properly constructed and equipped, and provided with all approved appliances for preventing the escape of fire. The testimony on this subject was given by the engineer who operated one of the engines and who was well acquainted with the condition of both of them, and by the master mechanic of the defendant company, who also knew their condition. This testimony is uncontradicted. There was no other testimony on the subject. The court refused to instruct the jury, as requested by counsel for the defendant, that “the evidence in this action shows that the engines of the defendant company were in good condition, properly constructed, and provided with all the usual appliances for the prevention of the escape of fires, in use at the time the fire occurred,” and submitted to the jury the question as to whether such engines were so constructed and in such condition. This was a plain error, within several of the decisions of this court. Spaulding v. Chicago & N. W. Ry. Co. 33 Wis. 582. See S. C. 30 Wis. 110;Read v. Morse, 34 Wis. 315;Cockburn v. Ashland Lumber Co. 54 Wis. 619;S. C. 12 N. W. REP. 49;Brusberg v. Milwaukee, L. S. & W Ry. Co. 55 Wis. 106;S. C. 12 N. W. REP. 416. This was a material error. The verdict is general, and there are no specific findings of fact. It was said, in the case first above cited, that “the fact that the question of the sufficiency of the engines was submitted to them, may have been, and probably was, taken by the jury as an intimation by the court that there was testimony in the case from which they might find that the engines were defectively constructed, or were in a defective condition. We cannot say that the jury did not so find, or that such finding is not the sole basis of the verdict and judgment for the plaintiff.” This language is applicable...