Theresa Vill. Mut. Fire Ins. Co. v. Wis. Cent. Ry. Co.

• Court: Wisconsin Supreme Court
• Writing for the Court: SIEBECKER
• Citation: Theresa Vill. Mut. Fire Ins. Co. v. Wis. Cent. Ry. Co., 144 Wis. 321, 128 N.W. 103 (Wis. 1910)
• Decision Date: 25 October 1910
• Parties: THERESA VILLAGE MUT. FIRE INS. CO. ET AL. v. WISCONSIN CENT. RY. CO. ET AL.

144 Wis. 321

128 N.W. 103

THERESA VILLAGE MUT. FIRE INS. CO. ET AL.

v.WISCONSIN CENT. RY. CO. ET AL.^d1

Supreme Court of Wisconsin.

Oct. 25, 1910.

Appeal from Circuit Court, Dodge County; E. Ray Stevens, Judge.

Action by the Theresa Village Mutual Fire Insurance Company and others against the Wisconsin Central Railway Company and others. From a judgment for plaintiffs, defendants appeal. Affirmed.

Barnes, Marshall, and Vinje, JJ., dissenting.

This is an action to recover the amount of insurance paid by the plaintiffs to Emma Frederich, whose property is alleged to have been destroyed by fire on May 18, 1906, through the negligence of defendant. The defendant has a right of way and depot grounds which is 200 feet wide, extending through the village of Auburndale; the track being in the center thereof. Through the village the tracks are almost level, but west of it there is an upgrade. The depot is on the north side of the tracks, which run in a northwesterly and southeasterly direction. Immediately north of the right of way is Connor street, 66 feet wide, the principal street of the village. On the north side of Connor street is the only sidewalk on the street. This walk lies in front of the row of buildings which constitute the business portion of the village. Northwest of the depot building and across Connor street from it was on May 18, 1906, a store building owned and occupied by Mrs. Emma Frederich. Beginning at a line about 400 feet west of the depot building, the piece of ground 75 feet wide and about 277 feet long, lying between Connor street and the track, was leveled and used by the Connor Company for piling wood preparatory to its shipment on the railroad. The village school grounds were across Connor street northwest of this piece of ground; the school building being about 400 feet from it. About half a mile west of the depot and north of defendant's right of way was a sawmill owned by the Connor Company. The Connor Company also owned a general store on Connor street east of the depot building, and had a limehouse near the west end of the ground used for piling wood. During the winter prior to May 18, 1906, the Connor Company had accumulated between 1,200 and 1,500 cords of wood, and on May 18, 1906, had piled upon the ground used for that purpose upwards of 1,000 cords of wood. About one-third of the wood was hard maple and birch; the rest being kiln wood. The kiln wood was cut from dead and down timber, pine, hemlock, and other soft wood, and is described as partially decayed, punky, the bark loose, and the surface rough and fuzzy. It was very dry; the previous several weeks having been unusually dry. The wood was all of cordwood length and was placed in piles from 6 to 8 feet in height, about 150 feet in length; two or three piles being placed together with passageways between them. The wood was ready for shipment, and during the two months prior to May 18, 1906, about 200 cords had been shipped out, about 20 cords during the four weeks previous to that date. The Connor Company, as a protection in case of fire, a few days before May 18, 1906, placed 12 or 15 barrels of water about among the woodpiles. On the morning of May 18, 1906, between 11:35 and 11:55 a. m., fire was observed near the center of the piles of wood. It spread very rapidly, driven by a strong southwesterly wind, destroyed the piles of wood, and was communicated to the buildings, destroyed most of them, and Mrs. Emma Frederich's store was also destroyed.

The plaintiffs, who have paid the insurance upon Mrs. Frederich's property which was destroyed, bring this action as subrogees of Mrs. Frederich, and allege that the fire in the wood was started from a spark emitted from a passing locomotive belonging to the defendant. Between the hours of 10 o'clock and noon on the morning of May 18, 1906, the defendant ran the following trains through Auburndale: A passenger train going northwest arrived at 10:59 and departed at 11:00 a. m., a freight train going eastward passed through Auburndale at 11:32 a. m. The defendant claims that the fire was not started by a spark from its locomotive, and that it may have been started from a spark from the Connor Company sawmill, by a spark from a fire in the open which was burning during the morning at the mill, by schoolsboys smoking among the woodpiles, from a match or cigar thrown onto the wood by some one passing between the piles, by an incendiary, or by some one going from the Connor store to the limehouse. Judgment was rendered upon the verdict of the jury which found that the fire was started from an engine of the defendant company, that the defendant was guilty of negligence in allowing the wood to remain on its right of way in the condition and the surroundings, and that their want of ordinary care was the proximate cause of the burning of Mrs. Frederich's property. There is no dispute as to the amount of damages. This is an appeal from the judgment.

John L. Erdall and W. A. Hayes (A. H. Bright, of counsel), for appellants.

Husting & Husting (Lamoreux & Husting, of counsel), for respondents.

SIEBECKER, J. (after stating the facts as above).

The jury found that the fire which destroyed the wood piled on the defendant's right of way was caused by sparks emitted from one of the defendant's passing engines. This is assailed upon the ground that the evidence wholly fails to sustain such an inference. It is argued that the evidence shows that the engines in question were without defects, and were properly managed while passing through Auburndale at the time the fire is claimed to have originated from sparks emitted therefrom. No negligence is charged as regards the proper condition and the proper management of the engine. The ground on which liability of defendants is claimed is that it was negligent in allowing this wood to remain on their right of way under the circumstances and conditions shown.

Assuming that such engines were free from defects and were properly managed at the time, does the evidence sustain the inference that the fire originated from a spark emitted therefrom? There is evidence in the case tending to show that engines in operation as these were do emit sparks. It appears that this is a common result from operating locomotive railroad engines. The claim is made, however, that, on the occasion in question, the discharge of sparks from these engines was so reduced on account of very light work required of them in passing through this station that this danger was practically removed, and that the black smoke of the passenger engine and the shutting off of steam power on the freight engine accompanying their passage through the station this day sustain this claim. The evidence on this subject presents a situation from which conflicting inferences may be drawn, and the jury was warranted in finding sparks were emitted from these engines as they passed through this station.

The further claim is made that the evidence is too vague and speculative to support a reasonable inference that a spark from either of the defendant's engines actually started the fire. The contention is based on the want of direct evidence that sparks were observed; that the fire began burning at a time too remote from the passing of the last train, in view of the highly inflammable condition of the wood where it started; and that other more probable causes were shown to have existed. We discover no conditions, as shown by the evidence, from which it can be said that another alleged cause was more likely to have caused the fire than an engine spark. The state of the evidence on this subject well justified the jury in rejecting all the other alleged causes as the origin of this fire. The argument that it could not be possible that the fire began to burn so as to be visible at so remote a time after the first engine passed under the existing conditions is not conclusive. It cannot be said that a spark lodged in the material would not lie for some time in a smouldering state before progressing to a state of flames as first observed on the top of the pile of wood. The facts and circumstances shown are such as to make this an appropriate inquiry for the jury to determine in the light of all the evidence bearing on the question. As stated in Abbot v. Gore, 74 Wis. 509, 43 N. W. 365: “The fact that the engine passed shortly before the fire was discovered * * * is some evidence tending to show * * * that the engine did set the fire, notwithstanding that it was in good order and properly managed.” True, no witness testified to having seen sparks from either of these engines lodge at the place where the fire was first observed, but this is not necessary to lead the jury to the conclusion that the fire originated from an engine spark. Donovan v. C. & N. W. R. R. Co., 93 Wis. 373, 67 N. W. 721. The court properly refused to change the answer to the first question. The jury found that the railroad company was guilty of a want of ordinary care in allowing the wood to remain on its right of way. The court instructed the jury that it was the company's duty to provide a piling place for such wood, and that it was not negligence to permit it to be piled where it did when the wood was received, but that they must determine whether, in view of all the facts and circumstances disclosed by the evidence, allowing it to remain on its right of way near the track and passing trains constituted a want of ordinary care.

The appellant asserts that the obligation of the defendant to receive this wood and place it near its road for shipment rightfully included reception of it in the quantities and at the place it did, and that it properly allowed it to remain there under the conditions and circumstances here shown, and that it exercised ordinary care in the conduct of this business up to the day of the fire. It is undisputed that the defendant as a common carrier was obligated to receive and transport firewood, and that...