Kurz & Huttenlocher Ice Co. v. Milwaukee & N. R. Co.

• Decision Date: 06 December 1892
• Parties: KURZ & HUTTENLOCHER ICE CO. ET AL. v. MILWAUKEE & N. R. CO.
• Court: Wisconsin Supreme Court

84 Wis. 171

53 N.W. 850

KURZ & HUTTENLOCHER ICE CO. ET AL.

v.MILWAUKEE & N. R. CO.

Supreme Court of Wisconsin.

Dec. 6, 1892.

Appeal from circuit court, Milwaukee county; D. H. JOHNSON, Judge.

Action by the Kurz & Huttenlocher Ice Company and others against the Milwaukee & Northern Railroad Company for damages. Judgment for defendant on a special verdict. Plaintiffs appeal. Reversed.

The other facts fully appear in the following statement by WINSLOW, J.:

The action was brought to recover the value of plaintiff's ice houses, ice, tools, etc., destroyed by fire May 17, 1890. In February, 1890, the plaintiff constructed the three ice houses which were burned, upon rented land on the shores of Lake Winnebago, near the city of Menasha. The houses were all joined together, and at about the same time the Jefferson Ice Company built two ice houses west of and adjoining the plaintiff's houses. In March, 1890, the defendant railroad company constructed a temporary side track along in front of the ice houses, between them and the lake, and about 10 feet distant from them, which side track connected with the main line of the Appleton branch of defendant's railroad. This side track was put in by the company simply by request of one Reed, the owner of the lands upon which both the ice houses and track were situated, and the railroad company had no interest in the land on which the track was constructed, save such as might be obtained by such a mere license. The track was built to accommodate the owners of the ice houses in shipping in materials and shipping out ice, and it was used for that purpose. The track was rudely built while the ground was frozen, and some of the pieces of boards and timber left on the ground from the building of the ice houses were used in blocking up the ties. Prior to the burning of the ice houses, both the plaintiff and the Jefferson Ice Company had shipped in sawdust in cars, which was unloaded in front of their respective ice houses, and part of which had been necessarily scattered about the track and between the track and the ice houses. Both ice companies had also purchased hay, which was unloaded from wagons south of the track, and carried across the tracks on forks, so that a part of it was also scattered on the track and between the track and the houses. It was claimed on the trial by appellants that this debris had been cleaned up by the ice companies prior to the fire, but this evidence was contradicted by respondent's witnesses. On the day of the fire a strong wind was blowing across the track towards the ice houses, and the inflammable materials in and about the roadbed were dry. A switch engine was run down the side track past the plaintiff's house and in front of or a little beyond the Jefferson ice house. Within a few minutes a fire started. There is much evidence tending to show that it started between the rails of the railroad track in front of the Jefferson ice house, and it was rapidly carried by the wind to the Jefferson ice house, and from there to the plaintiff's ice houses, all of which were destroyed; the apparent course of the fire corresponding with the direction of the wind.

The plaintiff claimed in its complaint that the fire was directly caused by the negligence of the defendant in the following respects: “(1) In the negligent manner of constructing its roadbed; (2) negligently leaving on its roadbed quantities of chips, rubbish, and other inflammable materials; (3) negligently operating and running its locomotive; (4) in not providing its locomotive with any proper and sufficient appliances for the prevention of the escape and spread of fire therefrom; (5) carelessly switching and bumping the locomotive into other cars owned by the company standing on the track. That by reason of such negligence burning coals or cinders fell from the locomotive upon the combustible material placed and left upon the roadbed, setting the same on fire, which fire was communicated to adjoining property owned by the Jefferson Ice Company, and from thence communicated to the ice houses of the plaintiff.” The defendant, by answer, alleged that the track was laid by virtue of a mere license, and at the request of and for the convenience of plaintiff, and that these facts, as well as the manner of its construction, were known to the plaintiff; that the inflammable material on the track was placed and left there by the plaintiff and by the Jefferson Ice Company, and not by defendant; and denied that it caused or set the fire. Upon the trial the following special verdict was returned by the jury: (1) “Did Curtis Reed and wife, the owners of certain lands on Lake Winnebago, at Menasha, Wisconsin, through their son, W. W. Reed, on February 19, 1890, ask J. C. Spencer, vice president of the Milwaukee & Northern Railroad Company, if said railroad company would lay a track on the land of said Curtis Reed and wife, to enable persons to ship ice therefrom, if they, the owners, could induce persons to put up ice thereon? Answer. Yes. (By drection of court.)” (2) “Did the defendant, through said Spencer, promise to lay a temporary track on the land of said Curtis Reed and wife in case parties should put up ice thereon, and, in case the business should become permanent, to lay a permanent track on a grade to be made by the owners of the land? A. Yes. (By direction of court.)” (3) “Was the track which was laid a temporary track, laid by the defendant upon the frozen ground, in pursuance of said arrangement between the owners of said land and said Spencer? A. Yes.” (4) “Did the plaintiff ice company, after the defendant promised to lay said temporary track, knowing that other ice companies were putting up ice on said Reeds' land, make an arrangement with the said Reeds to occupy a...