Read v. Morse

Lyon, J. The only portion of the instructions which the court gave to the jury, necessary to be stated, is as follows: “ Fire is a dangerous and unruly element; therefore the necessities of society require that in its use, care, skill and diligence shall be used by the person using it, to prevent injury to others by it; and the law demands of men who use it for a propelling power, or for the purposes of generating steam, in using steam as the propelling power, that the utmost care and diligence shall be observed by them, together with all such means and products as skill and science have discovered, that may be necessary to keep it within proper control and prevent injury to others.” Whether the defendants used that degree of care and diligence in the management of their tug boat, and whether the same was provided with the specified means and appliances to prevent injury by the escape of fire, were submitted to the jury, as questions of fact to be determined by them from the [318] testimony. Due exception was taken on behalf of the defendants to each proposition contained in the above instruction, and to the submission of each of said questions to the jury. We are of the opinion that the learned circuit judge laid down too stringent rules in respect to the degree of care which the law required of the defendants in the management of their boat, and the character of the means and appliances they were under legal obligation to employ, to prevent the escape of fire. First, of the degree of care required. Doubtless a person who employs the element of fire to generate steam for propelling power, or who employs it for any other purpose under circumstances which render it especially dangerous to others, is held to the exercise of more care and caution in its use than is one who employs the same element for a less dangerous purpose. Yet the degree of care required is the same. In either case reasonable care, or what is the same thing, ordinary care, only, is required. The term “reasonable care” has no fixed, definite signification, but is a relative term. The caution which persons of ordinary prudence would exercise in any given case, is “ reasonable care,” as the term is used in the law. That which under some circumstances would be reasonable care, might under other circumstances be gross negligence. Ward v. R'y Co., 29 Wis., 144. In Kellogg v. The Ch. & N. W. R'y Co., 28 Wis., 223, the chief justice uses the following language: “ Eire is an agent of an exceedingly dangerous and unruly kind, and, though applied to a lawful purpose, the law requires the utmost care in the use of all reasonable and proper means to prevent damage to the property of third persons.” (p. 233.) The exercise “of the utmost care in the use of all reasonable and proper means to prevent damage,” is only the exercise of reasonable or ordinary care. It is precisely the degree of caution which persons of ordinary prudence would use, under circumstances of danger, to prevent damage. It will be observed that the circuit judge, while employing [319] to some extent the language of the chief justice, omitted the above qualification, and charged the jury, without any qualification, that the law requires the utmost care and diligence, in such cases, to avoid injury. This is equivalent to an instruction that if the defendants omitted any possible precaution, no matter how unusual, which might have been taken to prevent the escape of fire from the smoke stack of their boat, they were guilty of negligence. "We do not so understand the law. The “ utmost care ” which the law imposed upon the defendants, relates only to the use “ of all reasonable and proper means ” to avoid damage, and does not extend to all possible precautions against injury. The difference between the language of the chief justice, above quoted, and the instruction to the jury, is precisely the difference between reasonable care and extraordinary care. The omission of the above qualification from the instruction given, was, we think, an error which may have affected the verdict unfavorably to the defendants. Hence it is material. Second. In addition to the instruction above quoted, the court repeated several times an instruction, in substance, that unless the boat was provided with all the means and appliances which science has discovered to prevent the escape of fire, the defendants were guilty of negligence. The rule or principle here stated also lacks an important qualification. The rule, as recognized and adopted by this court in Spaulding v. The Ch. & N. W. R'y Co., 30 Wis., 110, required the defendants “to avail themselves of all the discoveries which science has put within their reach for that purpose, provided they are such as, under the circumstances, it was reasonable to require them, to adopiT (p. 121.) The remarks on the other branch of the case in respect to the omission of a material qualification, are applicable here, and need not be repeated. If any instruction ought to have been given on the subject, it should have conformed to the rule stated in the above case. But we think the court erred in submitting the question to [320] the jury in any form, as to whether the boat was provided with the necessary means and appliances to prevent the escape of fire. After a careful examination, we think the uncontradicted testimony proves that the boat was properly equipped. It is quite unnecessary to state the testimony on this subject, for there is no conflict, and it very satisfactorily appears therefrom that the boat was furnished with all appliances to prevent the escape of fire which could reasonably be required. Such being the case, it was error to submit the question to the jury. The case of Spaulding v. The Ch. & N. W. R'y Co. was brought here on a second appeal, and we reversed a judgment for the plaintiff on the sole ground that the court submitted this same question of fact to the jury, when the uncontradicted testimony proved that the locomotive which set the fire complained of was properly equipped. (See cases cited in the opinion on such second appeal, 33 Wis., 589-598.) Were there no other error in the case, this judgment must necessarily be reversed for the same reason. ' The foregoing views are decisive of the case, and we do not deem it our duty to determine the other questions which were argued by the counsel. By the Court. — Judgment reversed, and a venire de novo awarded.