Day v. H. C. Akeley Lumber Co.

Collins, J. Plaintiffs J. W. Day & Co. and defendant corporation were extensively engaged in the manufacture of lumber at Minneapolis. Their plants, operated by steam, and their lumber yards, were separated by a street only, and on the morning of May 21, 1891, fire destroyed a large quantity of lumber belonging to and piled in the yards of J. W. Day & Co. This lumber was insured,, and the insurance companies, having paid the amounts due on their respective policies, are made coplaintiffs herein, the action having been brought to recover the value, of the destroyed lumber. It is alleged in the complaint that the fire was caused by defendant’s carelessness and negligence in the operation of its mill, and particularly that it allowed a sawdust burner, used in connection, to become so out of repair that large quantities of coals and burning brands escaped through the netting on top, and set the fire in question. This, as might be presumed, was the main question of fact on the trial of the action; but, as the action comes before us. on a bill of exceptions, not on a settled case, we are not to review the evidence or to pass upon appellants’ forty-ninth specification of error. There have been fifty assignments of error made by appellants,, very few of which need be referred to. The others are without merit. Taking those which require mention in the order of discussion by appellants’ counsel, we first come to an instruction to. the jury requested by plaintiffs which the trial court declined to. give. This request eliminated from the case any consideration by the jury of defendant’s alleged negligence, and planted the plaintiffs’ right to recover upon grounds independent of such negligence. The fire used by defendant was for manufacturing purposes, and, if used with proper safeguards and without negligence, no liability attached for damages caused by its escape. Any other rule would make the person who uses fire for manufacturing or mechanical or propelling purposes, or even for heating, an insurer against accidents. The element of negligence—an essential element in [528] pleadings, as well as in proofs in cases of this nature — cannot he ignored when the cause is given to the jury. Counsel have confounded the question they argue with one relating to the burden of proof when damage is caused by fire. Doubtless, one who employs the element of fire for manufacturing or mechanical or propelling purposes, or who employs it for any purpose under circumstances which render it especially dangerous to others, is held to the exercise of more care and caution than is one who employs the same element for a less dangerous, purpose. Yet the degree of care is the same, for in either case reasonable care, or, what is the same thing, ordinary care, only, is required. Read v. Morse, 34 Wis. 318; Atkinson v. Goodrich Transp. Co., 69 Wis. 5, (31 N. W. Rep. 164.) Reasonable care is all that is required, but it must be proportionate to the risks to be apprehended and guarded against. Hoye v. Chicago, M. & St. P. Ry. Co., 46 Minn. 269, (48 N. W. Rep. 1117.) To state it briefly, negligence or misconduct is the gist of the action, and it must be proven. All of the questions to witnesses covered by assignments of error from one to eight, inclusive, relate to the exclusion of testimony tending to show that, immediately after the' fire, defendant, under the direction of the city building inspector, repaired the top of its sawdust burner. In the case of Morse v. Minneapolis & St. L. Ry. Co., 30 Minn. 465, (16 N. W. Rep. 358,) this court, after twice holding to the contrary, concluded that evidence of this character was inadmissible and its previous rulings wrong on principle. Several cases were cited in support of the changed position, and we are satisfied that the rule last adopted is the correct one, without regard to the time when the repairs are made. Scarcely a court in the country now holds that evidence of that kind should be admitted. We cannot agree with appellants’ counsel that this testimony was offered for the purpose of showing that there were holes in the netting of the burner when the fire occurred, for their argument in support of their assignments of error clearly repudiates the assertion. What we have said in respect to the request to charge which eliminated from the consideration of the jury all question of negligence on defendant’s part, as an essential element in the case, dis [529] poses of several alleged errors in the charge, and the balance have been so clearly shown to be unfounded in the opinion of the learned court below when refusing plaintiffs’ motion for a new trial that we can add nothing to what was there said. This last remark is applicable also to the fourth specification of error, relating to the exclusion of an answer to a question asked one of plaintiffs’ witnesses. ' Evidence was admitted, over plaintiffs’ objection, tending to show that defendant’s burner was as safe as any burner used or known. In the adoption and use of such appliances as a refuse burner, parties are not held to adopt and use appliances which are perfect. The defendant was bound to exercise care proportionate to the risks to be apprehended. It could do no more than to adopt and use the most approved and tested safeguards, and that it did was a fact perfectly proper to be shown. This could be done by comparing the burner it used with those elsewhere used in connection with sawmills, and it was not necessary to show that the situation and circumstances were precisely alike in all cases. As was said by the trial court, the kind of danger to be guarded against is the same, but the degree may differ, depending upon surroundings. The differences in situation, surroundings, and circumstances are all proper to be shown and considered when determining whether, in a given case, ordinary care has been observed in providing a burner for the consumption of refuse matter at a sawmill. The burner in question was built under the direction of one Turn-bull, who had had large experience in this work, it was claimed. One of the members of defendant corporation was asked, “What is and what had been Turnbull’s reputation as to competency in this line of business?” We see nothing wrong in the ruling of the court whereby an answer to this question was allowed. It was proper for defendant corporation to show that, when erecting this burner, they employed a competent man, one of good reputation as to competency for the work. It tended to show the degree of care used by defendant. It appears that, shortly before the fire, one of the firm of J. W. Day & Co. complained to Mr. Akeley, of defendant corporation, in respect to the condition of the netting on top of the burner, and that Akeley immediately sent for Turnbull. When testifying as to this, [530] the witness Akeley was asked to state what he told Turnbull he wanted done when the latter came to the mill. Akeley was permitted to answer, in effect, that he directed him to examine the burner, and, if anything could be done to make it safer, to do it. It is contended that the court below erred when receiving this answer, and again in refusing to strike it out. The evidence was proper, for it showed that a competent man was called, and told to do ■what plaintiffs claimed should be done. It tended to prove that defendant was not negligent in its efforts to make the burner safe, when attention had been called to its condition. We discover no error in the record. (Opinion published 50 N. W. Rep. 243.) Order affirmed.