Polzen v. Morse

• Decision Date: 08 April 1892
• Citation: 51 N.W. 940,91 Mich. 208
• Court: Michigan Supreme Court
• Parties: POLZEN v. MORSE.

51 N.W. 940

91 Mich. 208

POLZEN v. MORSE.

Supreme Court of Michigan

April 8, 1892

Error to circuit court, Otsego county; ROBERT J. KELLEY, Judge.

Action by Frederick Polzen against Henry R. Morse. Judgment for plaintiff. Defendant brings error. Reversed.

C. E. Williams and J. D Turnbull, for appellant.

W E. Depew and Frank Emerick, for appellee.

GRANT J.

Plaintiff's house and contents were consumed by fire July 11, 1888. He instituted this suit, charging that the fire was caused by the negligence of the defendant. The declaration contained three counts. The first charged that the defendant neglected to use proper and reasonable care to prevent the escape of fire from his fire-pit; the second, that it was dangerous on that day for defendant to light a fire or permit it to burn in his fire-pit, on account of the wind and condition of the weather, and dryness of the surroundings; the third, that he neglected to build a high board fence around his fire-pit, or to provide anything to prevent the escape of fire therefrom. Defendant owned and operated a saw-mill situated on the easterly bank of Thunder Bay river. This mill had been in operation for 25 years, and was run by water-power. Plaintiff purchased it in the spring of 1887. To the south and east of this mill is situated the city of Alpena. Prior to the purchase by the defendant, a portion of the refuse from the sawing had been consumed in a similar pit, considerably nearer the city. Defendant disposed of the waste matter from the mill by hauling and piling it in a vacant field along the bank of the mill-pond to the north and east of his mill. Upon this was placed the sawdust ready for burning in the winter. Nearly east of this he piled his slabs. Between these two piles was a public highway. A railroad, running nearly east and west, crossed the highway and the mill-pond to the south of these piles. The fire-pit then used was in a ravine extending from the river, and further up stream. The distance from the fire-pit to the sawdust pile was 28 rods; to the slab pile, 42 rods to the mill, 112 rods; and to the plaintiff's house, 304 rods. The wet debris from the mill was hauled to this pit daily, into which it was dumped and burned. It was hauled along this public highway till nearly opposite the pit, the fire-pit being to the west of the road. To the north and east of this road, opposite the fire-pit, was vacant land covered with brush, stump, logs, and debris. A short distance from the mill, and to the north and east, were situated the defendant's boardinghouses and barn. Near the slab pile was the roundhouse of the railroad company. Between the fire-pit and the plaintiff's lot is what is known as the "Taylor Forty," on which was an old sawdust pile, which was 224 rods from defendant's pit. Men were engaged in clearing up this "Taylor Forty," and were burning up the debris on it upon the day of the fire. The parties engaged in this work testified to this, as did also others who saw the fire. Fires had also been burning for several days to the north and east of...