Jacob Johnson Fish Co. v. Wachsmuth Lumber Co.

Siebeckeb, J. The defendant contends that, assuming that the refuse burner was equipped with reasonably safe appliances, the court erred in holding that the evidence was sufficient to show that the defendant was guilty of a want of ordinary care in running its sawmill and refuse burner on the day and at the time of the fire under the conditions then existing respecting the danger from fire on accoilnt of the inflammable material on its premises and the liability of its being ignited by sparks and of the Are being communicated iby the high wind to the property of others in the immediate [637] vicinity. Tbe facts disclosed by the evidence on this subject leave it uncertain whether the facts and circumstances of the case are such that they will sustain such a finding by the jury. Since a new trial must be awarded and we cannot now know what the particulars of the evidence may be upon the retrial of the case as to this claim of negligence, we do not regard it necessary to finally decide the case upon this issue, but we deem it appropriate to say that it is doubtful whether the evidence in the record tends to show that the defendant was guilty of a want of ordinary care in operating its sawmill and refuse burner, if provided with reasonably safe appliances, under the surrounding conditions as shown by the record. The court in its order for judgment declared that it appeared from the undisputed evidence that the plaintiff’s damages were in excess of $10,000; that the spark-arrester of defendant’s refuse burner was defective; and that question No. 3 of the verdict was understood by the court, the jury, and counsel not to have any reference to the spark-arrester. There is evidence-to the effect that the spark-arrester was equipped with a new three-sixteenths inch mesh of proper material, that it would not become defective from use in the length of time it had been used,'and that several witnesses examined it immediately after the fire and found it in good condition. This evidence was rebutted by opinion evidence to the effect that sparks emitted from such an arrester in good condition of repair would not live to cause a fire beyond a 200-foot area around the refuse burner. It also appears that many fires were set outside of this area during the preceding day and on the day of the fire, which may be found to have been caused by sparks emitted from this spark-arrester. This conflicting state of the evidence made the inquiry regarding the alleged defect of the spark-arrester an appropriate one for the jury and it should have been submitted to them for determination. An examination of the verdict discloses uncertainties re638 gar ding this inquiry and its submission to tbe jury. Tbe instructions given to tbe jury in connection witb questions 1 and 2 gave them no directions that this inquiry, as to tbe proper condition of tbe spark-arrester, was included in tbe questions submitted to tbem. Question 3, as framed, contains language which in its natural meaning is broad enough to embrace tbe inquiry as to whether tbe defendant provided a proper and suitable spark-arrester, but tbe instructions thereon do not refer to such an inquiry, and tbe declaration of tbe court that it was defective as matter of law repudiates tbe idea that this phase of tbe defendant’s negligence was passed on by tbe jury. From the whole record we cannot ascertain what issues may have been considered by the jury in framing their answers to tbe questions in tbe verdict, and this renders it too uncertain, indefinite, and insufficient to sustain tbe judgment awarded. We are also of tbe opinion that question 3 is not restricted by its phraseology to tbe means and appliances provided for extinguishing fires in tbe mill yard after ignition of the inflammable materials, and to prevent escape thereof to adjoining property. Since there must be a new trial ordered on account of tbe errors noted, and since tbe other questions raised will probably not arise upon a new trial of tbe action, we deem it unnecessary to consider tbem on this appeal. By the Court. — Judgment reversed, and tbe cause remanded for a new trial.