Kendrick v. Towle

• Decision Date: 08 April 1886
• Citation: 60 Mich. 363,27 N.W. 567
• Court: Michigan Supreme Court
• Parties: KENDRICK v. TOWLE.

27 N.W. 567

60 Mich. 363

KENDRICK v. TOWLE.

Supreme Court of Michigan

April 8, 1886

Error to Ionia.

Wilson & Trowbridge, for plaintiff.

Mitchel & McGarry, for defendant and appellant.

SHERWOOD, J.

The defendant was the owner and operator of a logging railroad which extended from Wager's mill, a point on the Detroit Lansing & Northern Railroad, in the county of Montcalm, some six miles back in the county, to a tract of pine timber. The road was the private property of the defendant, built under no charter from the state, and was run and operated as a private enterprise, and used principally for hauling logs. The cars were propelled by a locomotive engine, formerly used on the Wabash Railroad. It was a Mason standard gage, and a wood-burner.

The engine, in passing over the defendant's road, passed within 30 or 40 feet of a saw and shingle mill of the plaintiff. The mill had been built several years before the railroad was constructed, and had not been running for three or four months previous to the fifteenth day of September, 1883; but, before the mill was shut down, some considerable quantities of sawdust, cull shingle, spalts, and saps, such as usually accumulate about such a mill, had not been removed, but laid about the mill, and extended nearly to the defendant's railroad track. On that day the sparks from the defendant's engine lodged in this combustible matter, not many feet from the mill, and set it on fire, from which the mill and machinery to the value of between two and three thousand dollars was completely destroyed. The plaintiff brings this suit for his damages thus sustained basing it upon the negligence of the defendant in allowing the fire to escape from the engine in such manner as to set the plaintiff's property on fire, and destroy his buildings and machinery.

The plea was the general issue. The cause was tried at the Ionia circuit, before Judge SMITH, with a jury, and the plaintiff recovered a judgment for the sum of $2,115.

The defendant brings error. The record contains the substance of all the testimony and proceedings had in the case.

Nine of the twenty-three assignments of error raise the question as to whether there was a prima facie case of negligence alleged and proved against the defendant. We think the declaration sufficiently states the plaintiff's case, and that the evidence of plaintiff made out a prima facie cause against the defendant, and do not deem it necessary to go into a detail of the testimony in considering the question upon this point, but proceed to consider the other questions raised.

The second ground of error urged by defendant's counsel is that the court refused to strike out the evidence of plaintiff wherein he stated he did not consent to the defendant building his logging road. We do not think either party was prejudiced by the rulings of the court upon this subject, or by the testimony, or by the rejection of that offered. It is not entirely clear that the testimony had any bearing in the case either way. In any event, it was so slight as to have done no harm. In so far as it was received, we are not prepared to say it was objectionable for the purpose offered. Marquette, H. &amp O.R. Co. v. Spear, 44 Mich. 172; S.C. 6 N.W. 202. The ruling by the court refusing to allow defendant to show plaintiff did not object to the building of the road was entirely obviated, if erroneous, by subsequently allowing the defendant to make the proof he desired.

The defendant claims as his third ground of error that the court refused to give his sixth request to charge, by stating to the jury that "negligence consists in the failure to observe that degree of care which the law requires for the protection of the interests likely to be injuriously affected by the want of it." This definition was given by one of the ablest elementary law writers of modern times, and has received the approval of this court, (Flint & P.M. Ry. Co. v. Stark, 38 Mich. 717; Brown v. Congress & B. St. Ry. Co., 49 Mich. 153; S.C. 13 N.W. 494;) and we see no good reason for withdrawing that approval. The request of the defendant's counsel which the court omitted to give in the language requested was as follows: " 'Negligence' is defined to be the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do." While this request was not given in the language used, it was given in substance by the judge in the following paragraph, viz.: "In answering the question as to the plaintiff's negligence, the same as in answering the question of the defendant's negligence, involves an answer to the inquiry, what degree of care was required of him? He would be required to exercise reasonable care,--such care as a reasonable and prudent man would exercise under like circumstances; and that would be greater care with the road there than without it. The degree of care required of him is to be measured by the surrounding circumstances, and the interests likely to be injuriously affected by the want of care are to be considered in determining the degree of care he should exercise. He should act as a reasonable, prudent, and careful man, in view of the surroundings; and, in this connection, you must consider what was done and what was left undone." We think the degree of care which the defendant was required to exercise is very well stated in the above charge of the learned circuit judge, and no error can be maintained under the defendant's third ground.

The defendant insists, as his fourth reason for reversal, that the jury allowed interest to be recovered on the amount awarded as damages from the time of the fire; and that the charge of the court permitted it. It does not appear that anything more than actual compensation was given by the jury for the property burned; and in such cases, unless the addition of interest would increase the damages to so great an extent as to be clearly unjust, when the value of the property is taken into consideration, no reasonable objection can be made to the allowance of interest, and the objection in this case cannot be allowed to prevail. Lucas v. Wattles, 49 Mich. 383; S.C. 13 N.W. 782; Hoyt v. Jeffers,

30 Mich. 192; Winchester v. Craig, 33 Mich. 205; Beals v. Guernsey, 8 Johns. 348; Johnson v. Sumner, 1 Metc. 172; Derby v. Gallup, 5 Minn. 119, (Gil. 85;) Rhenke v. Clinton, 2 Utah, 230; Shepard v. Pratt, 16 Kan. 299; Sedg.Dam. (7th Ed.) 189n; The Amalia, 34 Law J.Adm. 21; Parrott v. Knickerbocker Ice Co., 46 N.Y. 361; Mailler v. Express Propeller Line, 61 N.Y. 312; Chapman v. Chicago & N.W. Ry. Co., 26 Wis. 295, 304; Sanborn v. Webster, 2 Minn. 323, (Gil. 277;) Railroad Co. v. Cobb, 35 Ohio St. 94; City of Chicago v. Allcock, 86 Ill. 384; Lincoln v. Claflin, 7 Wall. 132, 139; Old Colony R.R. v. Miller, 125 Mass. 1; Frazer v. Bigelow Carpet Co., 4 N.E.Rep. 620.

The fifth ground of error, and which was much relied upon in the argument of defendant's counsel at the hearing, was the refusal of the court to instruct the jury as asked in his thirteenth request, which was as follows: "If the jury find that the plaintiff suffered and permitted spalts, saps, slits, cull shingle, shavings, sawdust, or other highly combustible material, which were made, created, or manufactured by the operation of said mill, during the spring of 1883, to be and remain massed and scattered over the ground next to and adjoining said mill, or adjacent thereto, and to there remain till the time of the accident complained of, without removing the same, or taking any precaution to prevent the igniting of fire therein, and the spreading thereof to said mill; and that if such material had not been allowed to so remain the destruction of said property might not have occurred in the manner complained of,--then I charge you that, as a matter of law, the plaintiff is guilty of contributory negligence, and, regardless of any other facts in this case, the plaintiff cannot recover."

The consideration of this point involves a review of the whole case, and makes necessary some discussion of several matters not hereinbefore referred to. It must be remembered that at the...