Marvin v. Chi., M. & St. P. Ry. Co.

• Decision Date: 24 February 1891
• Citation: 47 N.W. 1123,79 Wis. 140
• Court: Wisconsin Supreme Court
• Parties: MARVIN ET AL. v. CHICAGO, M. & ST. P. RY. CO.

79 Wis. 140

47 N.W. 1123

MARVIN ET AL.

v.CHICAGO, M. & ST. P. RY. CO.

Supreme Court of Wisconsin.

Feb. 24, 1891.

Appeal from circuit court, Juneau county.

John T. Fish, for appellant.

Rogers & Hall, for respondents.

COLE, C. J.

The complaint charges that the defendant was negligent in using for operating its freight train an old, defective engine, which scattered sparks and coals on its right of way, and that this engine was carelessly managed. There was no evidence offered to support these allegations, and they were practically abandoned on the trial. The particular act of negligence relied on is that the company allowed dry grass, rubbish, and other combustible material to accumulate on its right of way, in which a fire originated from a spark which escaped from this engine near mile-post No. 19, and then passed from its right of way and ran across the intervening country to the plaintiffs' cranberry marsh, and destroyed the vines growing thereon. The place where the fire originated on the right of way was about 2 1/2 miles nearly north of the plaintiffs' cranberry marsh, and the intervening country was principally a marsh covered with dry moss and feather grass. It is indisputable that between 2 and 3 o'clock in the afternoon of July 28, 1886, a fire originated from a spark which escaped from the engine of a freight train near mile-post No. 19, and which spark lodged in the dry grass on the right of way and caused a fire. Two persons, who were near the mile-post, saw the smoke just after the freight train passed, and went as quickly as possible to the fire, and tried to stamp it out with their feet, but could not extinguish it. The wind was blowing a strong breeze from the north-west, and the fire spread rapidly to the east and south. The season was a very dry one, drying up water in swales and low ground where it usually stood. On the trial the plaintiffs were permitted to show, against the defendant's objection, the circumstances attending the alleged negligence of the defendant, such as the dryness of the season, the inflammable character of the surface of the intervening country, the connection of the various bottoms and their relation to the plaintiffs' cranberry marsh, and the strength and direction of the wind on the days between the origin of the fire, on Wednesday, and the following Monday, the day it reached the plaintiffs' cranberry marsh. It is objected that it was error to admit this kind of testimony under the allegations of the complaint. The allegations of the complaint are quite general, being to the effect that, as an engine passed along the track about 2 o'clock in the afternoon of the 28th of July, 1886, sparks and coals of fire escaped therefrom through the carelessness and negligence of the defendant, and came in contact with dry grass, old dry rubbish, and other combustible materials negligently permitted to accumulate on its right of way, at milepost No. 19, which fire escaped from the right of way and ran across the intervening country, and also ran across and burned the plaintiffs' cranberry marsh. We think the allegations were sufficient to admit proof of the attending circumstances of the fire, and that the burning of the plaintiffs' cranberry marsh might be a natural and probable result of such fire. The rule laid down, or rather approved, by this court in Atkinson v. Transportation Co., 60 Wis. 141, 18 N. W. Rep. 764, is that the negligent act must be the proximate cause of the injury, and it must appear that such injury was a natural and probable consequence of the wrongful act,...