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

• Decision Date: 25 November 1890
• Citation: 78 Wis. 120,47 N.W. 273
• Parties: MOORE v. CHICAGO, M. & ST. P. RY. CO.
• Court: Wisconsin Supreme Court

78 Wis. 120

47 N.W. 273

MOORE

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

Supreme Court of Wisconsin.

Nov. 25, 1890.

Appeal from circuit court, Monroe county; A. W. NEWMAN, Judge.John T. Fish and C. W. Briggs, for appellant.

Barker & Remington and J. M. Olin, for respondent.

ORTON, J.

The main facts are as follows: The plaintiff claimed to own and was in the actual possession of certain lands in the county of Monroe, in this state, which were of great value for the cultivation and production of cranberries, and some portion was valuable for timber growing upon it. To make said lands more available for the cultivation of cranberries, the plaintiff had constructed thereon certain dams and bulk-heads and other erections, and dug ditches for supplying the same with the necessary water, and regulating the same, some of which water came down upon said lands from lands adjoining belonging to other persons. Most of said land was well set with cranberry roots and vines capable of producing a large crop of cranberrries. The defendant's railway ran along adjoining the said land, on which trains of locomotives and cars were regularly run. The defendant had allowed dry grass and rubbish of various kinds--old wood, ties, stumps, bark, and other inflammable matter--to accumulate on its right of way in the vicinity of said lands. In the years 1886 and 1887, fires were kindled by said locomotives in said inflammable material on said right of way, which passed upon said lands of the plaintiff, and consumed said cranberry roots and vines, bulk-heads, dams, and other constructions, and injured said timber, and caused great damage to the plaintiff. This is not an uncommon case, nor at all complicated. It was very ably tried by distinguished counsel on both sides. The rulings of the court appear to have been clear and considerate, and the arguments of the learned counsel in this court were able and exhaustive, and their briefs comprehensive and voluminous; but the exceptions on which error is predicated do not appear to be important or material. The points made upon the rulings of the court, in which the learned counsel of the appellant claim errors have been committed, will be considered in their order.

1. Refusing to direct a verdict for the defendant. There was testimony tending to prove that the refuse and inflammable materials above described had been permitted to remain on the right of way of the company for many years, and that fires had before been set in the same by passing locomotives. It was a very dry season, when great care ought to have been used to avoid or prevent the setting of such fires, or prevent the running of the same on and over the adjoining cranberry marshes of the plaintiff, so liable to be burned over. This evidence would seem to be sufficient to warrant the jury in finding the negligence of the defendant. The testimony tended to prove, also, that fires were set by the passing locomotives, in said refuse on the right of way, and that such fires communicated with the marshes of the plaintiff, and that they were burned over, and the cranberry vines and roots were thereby destroyed, and the timber, standing on some portions of said land, was injured, and the bulk-heads, dams, and other constructions, by which the necessary water was secured and held to flood said marshes, were burned and injured, and that the plaintiff was thereby injured to the extent found by the jury. There was also testimony showing that the plaintiff was in the full, quiet, and peaceable possession of said lands thereby injured. This was sufficient to entitle the plaintiff to recover in the action. It was not, therefore, error for the court to refuse to direct a verdict for the defendant. In this connection it is proper to say, once for all, that, in our opinion, the evidence was sufficient to justify the verdict.

2. The court erred in charging the jury. To sustain this point, the learned counsel of the appellant contends that the court ought to have given the instructions asked: (1) That the negligence of the defendant in not keeping more men on the ground to extinguish fires, and in omitting to control and put out the fires alleged in the complaint, was not proved. The authorities cited by the learned counsel to this point are not applicable. There had been some evidence upon both of these questions, and it was no more the duty of the court to charge the jury that such negligence had not been proved than that it had been proved. These were facts for the jury to find had or had not been proved, and not the court. It would be a singular practice (or at least I am unacquainted with any such practice) for counsel to go through the case, and ask the court to charge the jury that each alleged fact, in respect to which there had been evidence, had or had not been proved. The jury could have been asked to find a special verdict upon the question of negligence, and upon what grounds they predicated such finding, and if any such ground had not been established by evidence, it might be an error that would reverse the judgment. Or perhaps the plaintiff might have been asked to withdraw such allegations as not having been proved. But the above method of saving such an exception appears to be quite improper, and the learned counsel failed to cite any case to such effect.

3. The admission of improper...