McNally v. Colwell
| Decision Date | 13 May 1892 |
| Court | Michigan Supreme Court |
| Parties | MCNALLY v. COLWELL. |
Error to circuit court, Alcona county; WILLIAM H. SIMPSON, Judge.
Action by Simon J. McNally against George L. Colwell. From a judgment for plaintiff, defendant brings error. Reversed.
R. J. Kelley, for appellant.
W E. Depew, (Frank Emerick, of counsel,) for appellee.
Plaintiff sued to recover for the value of certain pine lumber alleged to have been destroyed by fire through the negligence of the defendant. The plaintiff had verdict and judgment for $2,636. Colwell owned the only sawmill in Harrisville, Alcona county Mich., and the lumber burned was piled on the docks that ran from the mill out into the lake. This lumber was sawed and piled upon the docks by Colwell from logs owned by plaintiff Colwell receiving a certain sum per thousand feet for sawing and piling. This lumber was on the docks awaiting shipment. The fire originated in the boiler room of defendant's mill. A strong wind was blowing at the time from the direction of the mill towards the lumber. The mill was burned, and the fire spreading therefrom consumed the docks and lumber upon them. No fault was found with the construction of the boiler room, and the question of defendant's negligence was submitted to the jury upon two points: First. Was the defendant negligent in knowingly employing an engineer and fireman in the mill who were incompetent to perform their duties by reason of their use of intoxicating liquors? Second. Was the defendant negligent in not having the proper appliances in the mill for putting out fires that might arise there? At the close of the direct evidence on the part of the plaintiff, defendant's counsel moved for a direction to the jury to find a verdict for the defendant. This the court refused, and, at the end of the trial, submitted the case to the jury upon the two propositions stated above.
The court was in error in submitting the first question to the jury. There was testimony tending to show that the engineer and fireman were in the habit of using intoxicating liquors and were sometimes seen under the influence of such liquors but such liquor habit, or occasional intoxication, was not shown to have had any bearing whatever upon the origin of the fire, or to have had anything to do towards preventing its extinction. In the case of Cowley v. Colwell, 52 N.W. 73, which was argued in this court in connection with this case, and which was an action for lumber destroyed by this same fire, the circuit judge correctly, as we think, upon nearly, if not identically, the same evidence as in this case, withdrew this question of the use of intoxicating liquors by these employes of the defendant from the jury. It should have been withdrawn in this case. In the boiler room of defendant's mill there was a water tank about six feet high and five or six feet in diameter, filled with water from a pond which came up to the westerly end of the mill. The tank was supplied from a pipe leading from the pond, and there was sufficient head to keep it constantly filled. On the northerly side of the saw mill was a gristmill run by water, and the sluice for waste water ran between the two mills. There was also a sluice for the waste water of the millpond which ran directly through the lower part of the sawmill. The water was conveyed in a box about three feet wide by two feet deep, which stream of water was running through the mill at the time of the fire. At the time of the fire there were four or five pails in the mill, and one in the boiler room, sitting under a faucet in the tank. There was no pump in the mill, nor any hose, at the time of the fire, although hose had been in use before that time for wetting down the boiler room, but had become worn and useless. The contention of plaintiff on the trial was that there should have been a pony pump and sufficient hose in the boiler room to throw water upon the walls, and that, if there had been, the fire could have been extinguished when first discovered. The declaration averred negligence in this regard, in that the defendant "did not keep upon said premises any hose, or pails, or barrels of water, or axes, or the like, whereby, on the day and year aforesaid, (July 6, 1888,) a fire having broken out upon said premises, and there being no means of extinguishing the same, the fire was communicated to the said lumber of the plaintiff, and the same was wholly lost and destroyed." This is a peculiar case. No negligence is charged in the origin of the fire, but the defendant is sought to be held liable because he neglected to keep upon his premises proper and sufficient appliances to prevent the spread of an accidental fire starting upon his premises and within the inclosure of his boiler room in his mill. Nearly all of the cases found in the books have arisen from negligent fires communicated from sparks from locomotives and steamboat smoke stacks, or from manufacturing chimneys, or from fires set out in the open air upon the premises of the owner, and escaping therefrom. The question here is a new and novel one to me. If there is any liability here, from what duty does it arise? and what is the extent of the duty, if there be one, of the owner of a house, store, barn, mill, or other building, who has taken every and all necessary precaution to prevent the breaking out of a fire within the building, to keep in such building appliances for extinguishing fire, and to prevent its spreading to the property of others? Does the same rule apply to a mill that would govern the case of a store, barn, or dwelling house, and, if not, why not? The circuit judge instructed the jury that the defendant, in reference to the property of the plaintiff, was bound to exercise such care, and no more, to prevent the destruction of the same by fire, as a man of ordinary prudence and caution, under all the circumstances, would exercise in reference to property similarly situated, of the same kind and character, belonging to himself; that he was not obliged, as a matter of law, to have a pony pump or hose in his mill. He could have pails if he saw fit, provided the jury found that pails would so protect from the spread of fire that an ordinarily prudent man would have used them under like circumstances. The claim that the defendant ought to have had a pony pump upon his premises should not have been permitted under the pleadings, as there was no allegation in the declaration that it was the duty of defendant to have such a pump, or that he was negligent in not having it; nor do I think that he was obliged to have and keep hose in the mill under the circumstances of its situation and surroundings. After much research, I have been unable to find a case at all like the present, or anything in the textbooks bearing directly on the question involved here. If a fire is carefully set and maintained within one's own building, in the management of a lawful business, and all proper precaution taken to prevent its escape, what is the duty of the owner of...
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