Abbot v. Gore

Ltoit, J. Inasmuch as the locomotive engine Ho. 65, which passed the place of the fire recently before the fire was discovered, was in proper condition and properly managed and operated, the plaintiff below was not entitled to recover unless the fire originated on the right of way of the railroad company, and in the combustible materials which the jury found were negligently left thdreon. If it originated outside the right of way, or within it at another point, and spread from thence over the marsh on which the hay was stacked, the only negligence which the verdict imputes to the defendants below, to wit, the leaving of combustible materials on the right of way, was not the proximate cause of the fire, and there can be no recovery in the action. There is no express finding in the special verdict that the fire originated in the right of way, and consequently none that it originated in such combustible materials. Is the omission fatal to the judgment? It is not if such omitted finding can fairly be deduced from the other findings. Eldred v. Oconto Co. 33 Wis. 133; Hutchinson v. C. & N. W. R. Co. 41 Wis. 541. We think the reasonable inference from the other findings is that the fire originated in such combustible materials on the right of way. What other deduction can be made or inference drawn from the findings that the trustees negligently left combustible matter on the right of way, and that such negligence caused the fire which destroyed the hay ? Had the fire originated off the right of way, or elsewhere on it, and spread from thence over the marsh, the imputed negligence could have had no connection with the burning of the hay, and the jury could not [512] have found that it was the cause of such burning. We conclude, therefore, that such omission is not fatal to the judgment. Of course, it would have been better practice to have submitted to the jury, in express terms, the question, Where did the fire start? Had the defendants asked the court to submit this question, we do not say a refusal to do so would not have been error. In this connection it may be observed that we find ample testimony in the record to support the finding that the fire originated in such combustible materials on the railroad right of way. The remaining exceptions relied upon as grounds for reversal of the judgment are predicated upon the rulings of the court on the trial. These will now be briefly considered. 1. It appeared that at or near the place where the fire started the track was upon an ascending grade, going towards Neenah, in which direction engine No. 65 was running at the time; also, that such engine was hauling a train of eighteen freight cars. The court, against objection, allowed testimony to the effect that it was the custom to break trains at that point and haul them up the grade in sections, which was not done with the train in question. Probably, the testimony was admissible, within the issues, as tending to show the manner in which the engine was managed and operated. Put whether it was so admissible or not is rendered immaterial by the fact that the jury found such engine was properly managed and operated. 2. The court refused to give an instruction proposed by defendants below, as follows: “The fact that the fire was discovered on or near the right of way of the defendants shortly after the passing of an engine that was in a safe and perfect and proper condition, and in charge of a competent engineer, and properly managed, is no evidence that such engine set such fire, and furnishes no evidence from [513] which you may infer that such engine set such fire.” The vice in this proposed instruction is, it assumes that an engine in proper condition and properly managed could not have set the fire. This proposition is against common knowledge. The fact that the engine passed shortly before the fire was discovered (about ten minutes before, as some of the witnesses testify), is some evidence tending to show, in the absence of proof of any other cause, that the engine did set the-fire, notwithstanding it was in good order and properly managed. We think the instruction was properly refused. 3. Error is assigned upon the following passage in the charge to the jury: “Now, the only negligence which is left to you under the rulings of the court to consider is the question whether there was any negligence on the part of the defendants in leaving bark and grass, as testified to by the witnesses, and other combustible material, if there was any such, within their right of way, or not.” The criticism made upon this passage in the charge is that the jury might have understood the court to assume that by so leaving bark and grass within their right of way they were guilty of negligence per se. We should be inclined to think this criticism hypercritical had not the learned counsel assured us that it is not. ¥e think, however, that there is no foundation for it in the language of the charge. The juror of average intelligence would, we are sure,'understand that the instruction left the jury free to find from the testimony whether the leaving of such combustible material on the track was or was not negligence. It is believed that the views above expressed dispose of all exceptions not specifically discussed and determined. Finding no error disclosed by the record, we cannot disturb the judgment of the circuit court. By the Court.— Judgment affirmed.