Spaulding v. Chicago & Northwestern Railway Co.

Lyon, J. This case was here on a former appeal, and is reported in 30 Wis., 110, where a sufficient statement of the principal facts of the case may be found. With a single exception, which will be mentioned hereafter, the testimony on the last trial is substantially the same as that produced on the first trial. The plaintiff again recovered, and the defendant again appeals to this court. Upon the subject of the alleged negligence of the defendant in permitting combustible material to accumulate and remain upon its' grounds along the railroad trade, the instructions which the court gave to the jury on the last trial seem to be — 590 — identical in principle with those given on. the first trial- and approved by this court. On the last trial, testimony was introduced for the first time, tending to show that at or near the place where one of the fires originated, and just before it started, the fireman or engineer on the defendant’s engine, which was then passing that point, threw from the engine a burning stick of wood, from which-the fire started, or might have started. It was proved by the undisputed testimony of the engineers of the defendant, that it was not unusual for the fireman to throw off sticks of wood which had been tried and found too large to enter the furnace door, and to which fire might adhere. The court refused to give an instruction prayed for on behalf of the defendant, to the effect that if the defendant’s employee willfully threw the burning stick into inflammable material near the track, and thus caused the fire by which the plaintiff’s timber was injured, •the defendant is not liable therefor. On the contrary, the court instructed the jury that if the fire originated in that manner, and if the act was negligence, the defendant is liable for such injury. This is claimed to be error. But we are of the opinion that the throwing out of the stick of wood, under the circumstances, was within the scope of the servant’s employment, and hence, if the act was a negligent one, the defendant is answerable for the consequences. We conclude, therefore, that the court held correctly on this point. On both trials the court, submitted to the jury the question of fact, whether the engines of the defendant, which, it is alleged caused the fires complained of, were constructed with reasonable care and skill and provided with proper appliances -to prevent, as far as practicable, the escape of fire therefrom, and refused to charge the jury, as requested on behalf of the defendant, that the evidence did not warrant a finding that the defendant was guilty of any fault or negligence in the construction or condition of such engines. The testimony relating to the condition of the engines, introduced on behalf of the de — 591 — fendant bn both trials, was entirely uncontroverted, and it proved that they were properly constructed and equipped, and provided with all of the most modern and approved appliances for preventing the escape of fire. The opinion by the chief justice on the former appeal contains a very strong intimation that the refusal to give the instruction above mentioned was error,' which alone was sufficient to reverse the judgment appealed from. The judgment was, however, reversed upon other grounds, and the point was not decided. The same question is again presented by the present appeal, and under circumstances which require that it be definitely determined. ' The rule of law is, doubtless, that where there is no conflict of testimony, where the existence of a fact is clearly proved by the undisputed testimony, the court should hold that the fact is established, and it is error to leave it to the jury to find whether or not the fact exists. Storey v. Brennan, 15 N. Y., 524; Gale v. Wells, 12 Barb., 84; Small v. Smith, 1 Denio, 583; New York & Erie R. R. Co. v. Skinner, 19 Pa. St., 298 ; Harris v. Wilson, 1 Wend., 511; Goodman v. Simonds, 20 How. (U. S.), 359 ; White v. Stillman, 25 N. Y., 541; Michigan Bank v. Eldred, 9 Wal., 553. But the learned counsel for the plaintiff very ingeniously argue, that the presumption that the defendant’s locomotives were not properly constructed and equipped (which, it was held on the former appeal, arises in a case where the fires complained of are communicated from them), has the force and effect of testimony in the case; and that the question whether the testimony introduced for the purpose of overcoming such presumption is sufficient for that purpose, is necessarily a question of fact to be determined by the jury. The argument would probably be a sound one, were this a presumption of fact. Its weight and force, and consequently the amount of proof essential to overcome it, would in such case be for the jury, and not for the court, to determine. But the presumption under consideration is clearly one of law, and is governed by — 592 — an entirely different rule. Its weight and effect, and the amount and character of the proof necessary to overcome it, are questions for the court, and were determined by this court on the former appeal. In such cases, if there is a conflict of testimony, the jury must determine what facts are proved; but where, as in this case, there is no such conflict, and the testimony is clear and satisfactory against the presumption, it is the duty of the court to hold, as matter of law, that the presumption is overcome. If, instead of doing so, the court leaves it to the jury to determine the fact, it is error, within the cases above cited, which will work a reversal of the judgment, if the party against whom it was committed was, or might have been, injured by it. Eor a very satisfactory statement of the. nature of presumptions, whether of fact or law, and the distinctions between them, see 1 Green! Ev., ch. 4, title “Presumptive Evidence,” and particularly §§ 14, 33, 44 and 48. The better opinion seems to be, that no disputable presumption of law is to be regarded as testimony which must necessarily be submitted to a jury, but its office is merely to determine upon which party the onus probandi is laid. Thus, in Davenport v. Schram, 9 Wis., 119, the action was for the price of certain goods, sold by the plaintiff to the defendant. The defense was payment by the sale and transfer of a note of a third person. Now the presumption of law is, that the note was not received by the plaintiff as a payment for the goods. Yet it was held that the testimony, prima facie, overcame the presumption, and the judgment of the court below, for the plaintiff, was reversed because the judge refused so to instruct the jury, but submitted it to the jury, upon all of the testimony, to find whether the note was received by the plaintiff as a payment for the price of the goods, or otherwise. The decision in Davenport v. Schram is not in conflict with the cases cited on behalf of the plaintiff. That decision seems applicable here, unless a feature of this case, now to be considered, distinguishes the two cases. — 593 — The learned circuit judge instructed the jury that if the fires were caused by the escape of sparks from the engines of the defendant, that fact alone was not sufficient to justify a finding that such engines were defective in any respect, either as regards construction or condition. The instruction is more favorable to the defendant than is warranted by the decision of this court on the former appeal; for the opposite doctrine is there asserted. The instruction casts upon the plaintiff th.e burden of showing that such engines were not .in proper condition, and inasmuch as there was no testimony tending to prove that fact, the counsel for the plaintiff argue, with much ingenuity, that the defendant could not have been injured by the refusal of the court to take from the jury the question of the sufficiency of the engines. Could it be demonstrated that the jury found that the engines were in proper condition when the fires occurred, and that they did not base their verdict upon a contrary finding, the position of the learned counsel would doubtless be a correct one. But the difficulty with the argument seems to be, that the case admits of no such demonstration. The fact that the question of the sufficiency of the engines was submitted to them may have been, and probably was, taken by the jury as an intimation by the. court that there was testimony in the case from which they might find that the engines were defectively constructed or were in a defective condition. We can not say that the jury did not so find, or that such finding is not the sole basis of the verdict and judgment for the plaintiff. It follows from the foregoing views that the judgment of the circuit court must be reversed, and a new trial awarded. DixoN, C. J. I see no inconsistency between the views expressed in the foregoing opinion and those expressed by myself in Graves v. The State, 12 Wis., 591, and Welch v. Sackett, id., 243, in relation to what is a presumption of law, and what one of fact; and I therefore concur with Mr. Justice LyoN that the — 594 — presumption in this case is properly denominated a presumption of law. It is a presumption drawn or indulged by the court, as distinguished from one which must be drawn by the jury, which furnishes the practical test whether it is a presumption of law or of fact. This whole subject is most learnedly and elaborately examined in State v. Hodge, 50 N. H., 510, in which a like question arose as in Graves v. The State, and where the doctrine of the latter case as to the nature of the presumption is distinctly affirmed. By the Court. — Judgment reversed, and new trial awarded.