Menomonie River Sash & Door Co. v. Milwaukee & N. R. Co.

• Decision Date: 26 November 1895
• Citation: 91 Wis. 447,65 N.W. 176
• Parties: MENOMONIE RIVER SASH & DOOR CO. ET AL. v. MILWAUKEE & N. R. CO.
• Court: Wisconsin Supreme Court

91 Wis. 447

65 N.W. 176

MENOMONIE RIVER SASH & DOOR CO. ET AL.

v.MILWAUKEE & N. R. CO.

Supreme Court of Wisconsin.

Nov. 26, 1895.

Appeal from circuit court, Marinette county; Samuel D. Hastings, Jr., Judge.

Action by the Menomonie River Sash & Door Company and others against the Milwaukee & Northern Railroad Company for damages for fire set by one of defendant's engines. Judgment for defendant, and plaintiffs appeal. Affirmed.

This action was brought to recover damages against the defendant for the negligent destruction by fire from one of its locomotives at Marinette, Wis., on the 30th of September, 1891, of the lumber of the Menomonie River Sash & Door Company, in its lumber yard adjoining the track of the defendant at that place, of the value of about $7,000. Three insurance companies, having policies on the property, under which they had paid losses, were joined as coplaintiffs, that they might have the benefit of any recovery that might be had. The answer, admitting the corporate character and business of the plaintiffs, was a general denial. At the trial before a jury, it appeared that the plaintiff the sash and door company had two lumber yards at Marinette, one of which was located about a block distant from its factory, between the main line of the defendant's road, called its “Western Yard,” and of its spur track to Minnekaunee, and east of their point of junction. There was an alley on the east side of this yard from the spur track to the main line. At the southeast corner of the lumber yard, the spur track was about three feet lower than the bottom of the most southeasterly pile of lumber. One of the piles of lumber was piled in part on the right of way, which was about 15 feet wide, and on the premises of one Hollister. It was at this point the fire started. The lumber was piled in the usual way, the one in which the fire originated being 4 or 5 feet high, and the next 15 feet; the piles varying all the way over the yard from that height down. The defendant's switch engine No. 2 came from Menomonie on the main track about half-past 3 o'clock on the afternoon of September 30th, and afterwards went down on the spur track. The wind was blowing from the south, and there was a rotten pine stump, 2 or 3 feet in diameter, about 55 feet north of the main track, and, shortly after the engine passed down upon the spur track, smoke was discovered coming from the stump, and it was found to be on fire. The switch engine returned from the spur track, and was backing down the main track, when the fire was discovered in the low pile of lumber at the point mentioned. There is an upgrade on the spur track of 8 feet for a quarter of a mile from the east to the lumber yard, over which the engine runs quite fast. Against the defendant's objection, evidence was given to show that fires had occurred previously along the track in the vicinity of the lumber yard in March, April, and May, and on the 5th, 9th, and 12th of the previous June, while this switch engine was running back and forth in the vicinity. The foreman of the sash and door company testified that he used to look out for fires all the time from the switch engine, because they had so many in that vicinity previous to the fire in question; that he had put out a good many of them; they were between the factory and the lime house, east of it, and this engine was there switching when the fires were discovered; that there were so many of them that he could not keep track of them. Other evidence was given tending to show that other fires had been caused by switch engine No. 2 during the spring of 1891, and in the month of June, in the same vicinity where it did its work. At the time of the fire, September 30th, the weather was very dry, and had been for a considerable time. The plaintiffs put in evidence bulletins which had been posted in defendant's roundhouse at Menomonie, where this engine was put up, issued by the superintendent of motive power for the company. One dated February 10, 1891, was to the effect that a large amount of money had been paid out by the company during the last year on account of damages caused by fires by locomotives, and that the testimony in such cases showed conclusively “that such fires were caused on account of allowing the front end [of the engine] to fill up with cinders; that the fact, if the front end becomes too full of cinders, sparks will be thrown, is familiar to all engineers; that front ends must be cleaned out at proper intervals, to prevent throwing sparks”; another, dated March 30, 1891, saying that “all engineers must see that their netting is examined at the end of each trip, and recorded in a book kept in the roundhouse for that purpose”; and another, dated September 24, 1891, to the effect that, “during the dry spells, engineers must pay particular attention not to allow front end of engine to fill on the road, and must stop and clean them out whenever there is a sufficient accumulation of sparks to cause the engine to throw cinders.” Evidence was given tending to show that soon after the fire, for three successive days, the engineer had not examined the front end of switch engine No. 2, nor did any one, and that said engine threw cinders considerably in November and December after the fire; that, three or four weeks before the fire, clothes hanging on a line parallel to the switch track, and 17 feet therefrom, had holes burned in them by sparks from this engine. Evidence was also given tending to show the different manners in which single front engines and extension front engines are constructed and operated, and that both kinds of engines were in general use, and that all engines would, at times, throw small sparks or cinders from which fires might at times result; that some of the improvements in the single front engines to prevent fires are more modern than in the extension fronts. On the part of the defendant, it was shown, by uncontradicted evidence, that switch engine No. 2 went into the company's shops for general repairs July 5, 1891, and left there for service August 2d thereafter, equipped with a baffle plate and usual devices for preventing the escape of sparks and cinders, and that the netting was new, all of which were fully described by an expert witness, who testified that his experience had brought him in contact with all styles of locomotives, equipped in all the ways in use, and that the devices so put in switch engine No. 2 were the most modern, tested, and approved devices in steam locomotives to prevent the escape of sparks; that he did not know of any device that would entirely prevent the escape of sparks through the smokestack of a locomotive, and that he did not think it possible to use finer netting and still work the engine; that the effect of finer netting would be to shut off the draft. Other expert machinists testified that when the engine left the shop August 2, 1891, it was in good condition in every respect, and could not have been in better condition. It was shown that John Cleary, the engineer who ran this engine at the time of the fire, was a competent and careful engineer, and he testified as a witness that he, with Joseph Bush and John Mullandyke, inspected the netting in this engine September 29th, the day before the fire, and found it in good shape, and that, on the evening of September 30th, they found the front end, netting and pan, and the engine generally, in good shape, and also on the 1st of October; that on these occasions they did not find any defect or want of repair in the front end of the engine or the pan. He testified to the management of the engine, at the time it is claimed the fire was set, in the usual manner; that, from September 24th to October 16th, they inspected the netting every night when the engine came into the roundhouse, in the presence of two witnesses; that he looked her over, inside and outside, and found her all right; and that he knew of no engine that would not throw some sparks or cinders. The record of the inspection was produced in evidence, and Bush and Mullandyke both testified, corroborating Cleary as to inspection. At the close of the evidence, the defendant asked the court to strike out all evidence in relation to fires claimed to have been set by said engine No. 2 prior to September 30, 1891, and, separately, to strike out all such evidence as to fires in April, May, June, and July, 1891, but these several requests were denied. The court, on like motion, and without objection on the part of the plaintiffs, struck out all such evidence as to fires in July, after the 4th of that month, and also all evidence as to throwing of cinders by said engine in November and December, 1891. The jury found a special verdict, in substance: (1) The fire in question started in the lumber yard of the Menomonie River Sash & Door Company, about 17 feet outside of the defendant's right of way, and about 25 feet from the center of the track. (2) The weather, at the time of the fire, and for some time before, had been dry. (3) The defendant's switch engine, hauling one loaded and two empty freight cars, passed the place where the fire started shortly before it started. (4) The fire in question was set by the defendant's switch engine. (5) Said engine was properly constructed and equipped, to prevent the escape of sparks and cinders. (6) Said engine was not in good condition when it passed the place where the fire started. (7) As to whether said engine was properly managed when it passed the place where the fire started, the answer was, “Don't know.” To the eighth question, “Was there any want of ordinary care on the part of the defendant which caused the fire which burned the lumber?” the jury answered in the affirmative; and to the ninth question, in substance, in what such want of care consisted, the jury answered, “Careless inspection of netting in engine No. 2.” It was found, in substance, that the sash and door...