Gibbons v. Wis. Valley R. Co.

• Decision Date: 23 October 1883
• Citation: 17 N.W. 132,58 Wis. 335
• Parties: GIBBONS v. WISCONSIN VALLEY R. CO.
• Court: Wisconsin Supreme Court

58 Wis. 335

17 N.W. 132

GIBBONS

v.WISCONSIN VALLEY R. CO.

Supreme Court of Wisconsin.

Filed October 23, 1883.

Appeal from circuit court, Wood county.James & Crosby and G. W. Cate, for respondent, Robert B. Gibbon.

Powers & Briggs, for appellant, the Wisconsin Valley R. Co.

ORTON, J.

The evidence tended to show that if the fire was set by the appellant's locomotive, it was by the one in the freight train which passed the station, near which the respondent's lumber was piled, at 10:15 o'clock in the forenoon, or by the one in the passenger train which passed the same place at 11:50 thereafter. The fire was discovered soon after the passenger train passed that point, and there was no evidence whatever that this particular fire was set by any other engine on the road. The circuit court admitted evidence, against the objection of the appellant, of fires in the vicinity on this same road, both before and after this fire, occurring after the passage of other locomotives. This was clearly erroneous. Such evidence would open the door for a wide issue of great importance,--whether such other locomotives caused such fires or not,--and could not affect the issue in the cause, even if it had been proved that other locomotives caused other fires in the vicinity. The rule has never been extended further than to allow proof of other fires caused by the same machinery. If it had been proved in this case, beyond a doubt, that one of these locomotives--either that of the freight or passenger train passing soon or immediately before the fire occurred--caused the fire, it could not add to the defendant's liability by showing its habitual carelessness in respect to other locomotives; and if it had been proved that other locomotives on the same road caused other fires, at other times and places, it would not be even presumptive evidence that the locomotives in question were insufficient in any respect, or that they caused this particular fire.

The evidence in this case was circumstantial, and it should not be extended to circumstances which could not have any logical bearing upon the issue. The syllogism that because other locomotives on this road caused other fires at other times in the vicinity, therefore these two locomotives, or one of them, which passed the place at this time, caused this particular fire, would be no more logical than that locomotives on some railway in another state, a thousand miles distant, caused fires in the vicinity of the railway, on account of insufficient manufacture or repair, or other negligence. Evidence, to be admissible in such cases, should have some relative bearing upon the issues, either directly or remotely, and it is not perceptible how evidence that other locomotives, at other times and places, even on the same road and in the vicinity of the fire in question, could have any such bearing. Evidence that other fires had been set by the fire machinery managed by the company, before or after or about the time of the fire in question, is confined to the same machinery which caused such fire, and which may bear upon the question of the sufficiency of such machinery or its management; and such are the authorities cited by the learned counsel of the respondent. There may be cases which hold that the locomotives of the company on the same road, at different times before and after the fire in question, were so constructed as to scatter fire along its track, was competent evidence to show a possibility, and therefore a probability, that this particular fire was set by some one or more of such locomotives. But, so far as I have examined such cases, they are those in which the locomotives which actually caused the burning were not identified.

The late and leading case in which this question is discussed and decided is that of the Grand Trunk R. Co. v. Richardson, 91 U. S. 454. In that case, both in the brief of the learned counsel and in the opinion of Mr. Justice STRONG, the language is very carelessly used, that evidence that the locomotives of the company, at other times and places on the same road, were so constructed as to scatter fire along the track, might tend “to prove a possibility, and a consequent probability, that some locomotive of the company caused the fire, and show a negligent habit of the officers and agents of the railroad company.” But in that case it is said in the opinion, “the particular engines which caused the fire were not identified.” In such a case such evidence might tend to prove the possibility and consequent probability that some locomotive of the company caused the fire. This wonderfully loose logic may be satisfactory to a judicial mind in cases where there was no proof that any particular and identified locomotive caused the fire in question, if any locomotive of the company did. But in due deference to the learned judge who wrote the opinion,and the other judges who have used this language, it is submitted that a possibility can never establish a probability of a fact required to be proved in order to make a railroad company or any party liable in any action whatever, and the proposition is no sounder in logic than in law. It would be monstrous doctrine that when a party is sued in tort for a personal injury to another, occasioned by his negligence in not furnishing proper appliances, or otherwise, his common carelessness, or carelessness in other cases, tend to prove the “ possibility,” and therefore “probability,” that the act charged was the result of his negligence, without proof even that he committed it.

In cases where it is shown, either by positive or circumstantial evidence, that some locomotive of the company caused the fire, without the identification of any particular one, such evidence might have weight in showing the negligence of the company. There may be cases which have gone further than this in the admission of such evidence, but they do not appear to us authority in reason. In Ross v. Boston, etc., R. Co. 6 Allen, 87, it was held competent to show that the engine in question emitted burning sparks a fortnight previous to the fire in question, and that other similarly constructed engines had emitted sparks which set fires. Where there is no proof of what particular engine set the fire, and the circumstantial evidence is such that there is a strong probability that some engine on the road did set the...