Whitney v. Clifford

• Decision Date: 20 February 1883
• Citation: 14 N.W. 927,57 Wis. 156
• Parties: WHITNEY v. CLIFFORD.
• Court: Wisconsin Supreme Court

57 Wis. 156

14 N.W. 927

WHITNEY

v.CLIFFORD.

Supreme Court of Wisconsin.

Filed February 20, 1883.

Appeal from circuit court, Portage county.

This case was here upon a former appeal. 46 Wis. 138. The plaintiff owned seven or eight hundred thousand feet of lumber, in piles, situated near the planing-mill of one E. M. Copp. The defendant was the owner and in the use and occupation of a steam shingle-mill, run and operated by the defendant by means of steam generated by fire,--the fire, boilers, engine, and smoke-stack being located in and upon said steam-mill. This mill was about 300 feet from Copp's. It is claimed by the plaintiff that between his lumber and the defendant's mill there was considerable dry and inflammable material, of which the defendant had notice; that the smoke-stack of defendant's mill was not provided with any appliances to arrest and prevent the issuing and escape of sparks and coals of fire therefrom; and that such appliances were necessary, and that the same was not provided by reason of the carelessness, heedlessness, and negligence of the defendant; and that by reason of such negligence sparks and coals did escape and set fire to Copp's planing-mill, and from thence to the plaintiff's lumber, which was thereby burned and consumed, and for which the plaintiff claims $10,000 damages. Upon issue joined a trial was had, and under the charge of the court a verdict was found for the defendant, and from the judgment entered thereon this appeal is brought.G. W. Cate and Jones & Sanborn, for appellant, Ebenezer Whitney.

Raymond & Hazeltine, for respondent, William J. Clifford.

CASSODAY, J.

The court having, among other things, charged the jury, in effect, that it was competent for them to find, from the facts and circumstances proven, that the plaintiff's lumber was burned by fire from the defendant's mill, if they were convinced that such was the cause, even if there was no proof that the sparks were seen to come and alight and kindle on the property burned, further charged the jury as follows: “But if, after hearing all the proof upon the question, you are still in doubt where the cause came from, then the defendant should not be charged with the amount of damages of the injury. In other words, you should be satisfied from the testimony that you have heard that the fire was occasioned by Clifford's mill, through the negligence of those having charge of it, and if you are not so satisfied you should find for the defendant.” It may have been an inadvertent use of words, but, as we construe this language of the court, it was an express direction to the jury that the defendant was not liable, if, after hearing all the proof upon the question, they were still in doubt as to where the cause of the fire came from. Having been thus expressly directed, the jury might well infer from the...