Kingston v. Chi. & N. W. Ry. Co.

• Decision Date: 11 January 1927
• Citation: 211 N.W. 913,191 Wis. 610
• Court: Wisconsin Supreme Court
• Parties: KINGSTON v. CHICAGO & N. W. RY. CO.

191 Wis. 610

211 N.W. 913

KINGSTON

v.CHICAGO & N. W. RY. CO.

Supreme Court of Wisconsin.

Jan. 11, 1927.

Appeal from Circuit Court, Shawano County; Edgar V. Werner, Judge.

Action by W. J. Kingston against the Chicago & Northwestern Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.--[By Editorial Staff.]

Action to recover damages caused by a fire. One main line of defendant's railroad extends in a general north and south direction from Gillett, Wis., to Saunders, Mich., through Bonita. A branch line extends westerly from Bonita to Oconto Company's logging read. The branch runs generally in an east and west direction, and is about ten miles in length. La Fortune's spur is on the branch about two miles west of Bonita. The spur consists of a side track on the south side of and parallel with the branch track. Plaintiff's property was located on a landing, known as Kingston's landing and as the cedar yard, adjacent to and south of the spur track.

On April 29, 1925, a forest fire was burning about one-half to one mile northwesterly, nearly west, of this landing. On the same date another fire was burning about four miles northeast of the landing. On April 30th these two fires united in a region about 940 feet north of the railroad track. The line of fire thus formed after the union was about 40 or 50 rods east and west. It then traveled south and burned plaintiff's property, consisting of logs, timber, and poles on this landing or in the cedar yard. The plaintiff claims that both fires which united were set by the railroad company; one by a locomotive on its main line running north of Bonita, the other by a locomotive on the branch about three miles west of Bonita and about a mile in a westerly direction from the spur.

The jury found that both fires were set by locomotives belonging to the defendant company, and that both fires constituted a proximate cause of the damage. It further appears that, in an effort to save plaintiff's property in the afternoon of April 30th, when the united fire was bearing down upon this property, a crew of men had gathered at the spur with a view of assisting in fighting the fire. A brother of the plaintiff was present, acting for and representing the plaintiff. There was talk of backfiring, but Kingston, representing the plaintiff, said that he did not want to back fire except as a last resort. Among these men were certain section men in the employ of the defendant, who, it appears, were there for the purpose of fighting the fire. Finally Kingston gave the word to backfire. He, with others, started a backfire in a westerly direction. At a point about 70 feet from where Kingston started his backfire, three section men started a backfire which they carried in an easterly direction. This backfire was started upon or very close to the line of defendant's right of way. The backfire started by the section men got beyond their control, ran across the track and into plaintiff's logs and timber. The jury also found that the section men were negligent in permitting the backfire to get beyond their control, and such negligence constituted a proximate cause of the damage.

Judgment was rendered for the plaintiff for the amount of the damages as found by the jury, and the defendant brings this appeal.

J. F. Baker, and Llewellyn Cole, both of Milwaukee, for appellant.

Winter & Winter, of Shawano, for respondent.

OWEN, J.

The jury found that both fires were set by sparks emitted from locomotives on and over defendant's right of way. Appellant contends that there is no evidence to support the finding that either fire was so set. We have carefully examined the record, and have come to the conclusion that the evidence does support the finding that the northeast fire was set by sparks emitted from a locomotive then being run on and over the right of way of defendant's main line. We conclude, however, that the evidence does not support the finding that the northwest fire was set by sparks emitted from defendant's locomotives or that the defendant had any connection with its origin. A review of the evidence to justify these conclusions would seem to serve no good purpose, and we content ourselves by a simple statement of the conclusions thus reached.

We, therefore, have this situation: The northeast fire was set by sparks emitted from defendant's locomotive. This fire, according to the finding of the jury, constituted a proximate cause of the destruction of plaintiff's property. This finding we find to be well supported by the evidence. We have the northwest fire, of unknown origin. This fire, according to the finding of the jury, also constituted a proximate cause of the destruction of the plaintiff's property. This finding we also find to be well supported by the evidence. We have a union of these two fires 940 feet north of plaintiff's property, from which point the united fire bore down upon and destroyed the property. We, therefore, have two separate, independent, and distinct agencies, each of which constituted the proximate cause of plaintiff's damage, and either of which, in the absence of the other, would have accomplished such result.

[1][2] It is settled in the law of negligence that any one of two or more joint tort-feasors, or one of two or more wrongdoers whose concurring acts of negligence result in injury, are each individually responsible for the entire damage resulting from their joint or concurrent acts of negligence. This rule also obtains--

“where two causes, each attributable to the negligence of a responsible person, concur in producing an injury to another, either of which causes would produce it regardless of the other, * * * because, whether the concurrence be intentional, actual or constructive, each wrongdoer, in effect, adopts the conduct of his coactor, and for the further reason that it is impossible to apportion the damage or to say that either perpetrated any distinct injury that can be separated from the whole. The whole loss must necessarily be considered and treated as...