Theresa Village Mutual Fire Insurance Co. v. Wisconsin Central Railway Co.

The following opinion was filed October 25, 1910: SiEBncKER, J. The jury found that the fire which destroyed the wood piled on the defendant’s right of way was caused hy sparks emitted from one of the defendant’s passing ■engines. This is assailed upon the ground that the evidence wholly fails to sustain such an inference. It is argued that the evidence shows that the engines in question were without defects and were properly managed while passing through Auhurndale at the time the fire is claimed to have originated from sparks emitted therefrom. No negligence is charged as regards the proper condition and the proper management of the engine. The ground on which liability of defendant is claimed is that it was negligent in allowing this wood to remain on its right of way under the circumstances and conditions shown. Assuming that such engines were free from defects and were properly managed at the time, does the evidence sustain the inference that the fire originated from a spark emitted therefrom? There is evidence in the case tending to show that engines in operation as these were do emit sparks. It appears that this is a common result from operating locomotive railroad engines. The claim is made, however, that on the occasion in question the discharge of sparks from these engines was so reduced on account of very light work required of them in passing through this station that this danger was practically removed, and that the black smoke of the passenger engine and the shutting off of steam power on the freight ■engine accompanying their passage through the station this day sustain this claim. The evidence on this subject presents — 326 — a situation from which conflicting inferences may be drawn, and the jury was warranted in finding that sparks were emitted from these engines as they passed through this station. The further claim is made that the evidence is too vague and speculative to support a reasonable inference that a spark from either of the defendant’s engines actually started the fire. The contention is based on the want of direct evidence that sparks were observed; that the fire began burning at a time too remote from the passing of the last train, in view of the highly inflammable condition of the wood where it started; and that other more probable causes were shown to have existed. We discover no conditions, as shown by the evidence, from which it can be said that another alleged cause was more likely to have caused the fire than an engine spark. The state of the evidence on this subject well justified the jury in rejecting all the other alleged causes as the origin of this fire. The argument that it could not be possible that the fire began to burn so as to be visible at so remote a time even after the first engine passed, under the existing conditions, is not conclusive. It cannot be said that a spark lodged in the material would not lie for some time in a smouldering state before progressing to a state of flames as first observed on the top of the pile of wood. The facts and circumstances shown are such as to make this an appropriate inquiry for the jury to determine in the light of all the evidence bearing on the question. As stated in Abbot v. Gore, 74 Wis. 509, 43 N. W. 365: “The fact that the engine passed shortly before the fire was discovered ... is some evidence tending to show . . . that the engine did set the fire, notwithstanding it was in good order and properly managed.” True, no witness testified to having seen sparks from either of these engines lodge at the place where the fire was first ob — 327 — served, but this is not necessary to lead tbe jury to the conclusion that tbe fire originated from an engine spark. Donovan v. C. & N. W. R. Co. 93 Wis. 373, 67 N. W. 721. Tbe court properly refused to change tbe answer to tbe first question. Tbe jury found that tbe railroad company was guilty of a want of ordinary care in allowing tbe'wood to remain on its right of way. Tbe court instructed tbe jury that it was tbe company’s duty to provide a piling place for such wood, and that it was not negligence to permit it to be piled where it did when tbe wood was received, but that they must determine whether, in view of all tbe facts and circumstances disclosed by the evidence, allowing it to remain on its right of way near the track and passing trains constituted a want of ordinary care. Tbe appellant asserts that tbe obligation of tbe defendant to receive this wood and place it near its road for shipment rightfully included reception of it in tbe quantities and at tbe place it did, and that it properly allowed it to remain there under the conditions and circumstances here shown, and that it exercised ordinary care in the conduct of this business up to tbe day of tbe fire. It is undisputed that the defendant as a common carrier was obligated to receive and transport firewood, and that it bad tbe right to conduct such business in tbe manner that ordinarily prudent and careful persons conduct it under tbe same or similar circumstances. Tbe question whether tbe defendant conducted this business in such manner must be resolved in tbe light of tbe facts and circumstances disclosed. If tbe evidence tends to show extraordinary dangers and hazards to tbe property of others from fire incident to tbe way defendant conducted this business, then, in tbe exercise of ordinary care, it was required to exercise a degree of care commensurate with such dangers and hazards. Tbe question then is: Does tbe evidence present a situation from which tbe jury could infer that tbe railroad company was guilty of a want of ordinary care in permitting tbe wood — 328 — to remain as piled, in tire light of the existing conditions? An examination of the facts shows that the jury was justified in finding that there was a very large quantity of wood collected on this area near the track where trains passed in such close proximity that sparks were likely to fall upon it; that private buildings were so near thereto as to be in danger of being destroyed from a burning of this wood; that the wood had remained there for a long time in a dry and windy season; and that it was in such inflammable condition as to make it highly susceptible to ignite from sparks by reason of the bark being loose, the surface being rough, splintery, and fuzzy, thus rendering it highly inflammable. Erom a consideration of such conditions in the situation shown, it was reasonable for the jury to find that the defendant’s conduct in permitting the wood to remain in such condition on its right of way was not an exercise of due care on its part. Knickel v. C. & N. W. R. Co. 123 Wis. 327, 101 N. W. 690. It is contended that there is a failure of proof that the negligence found was the proximate cause of the destruction of Mrs. Fredericks property. The peril to this property from a burning of the wood was obvious to any person observing the surrounding conditions. We can perceive no reason for saying that this danger was not to be contemplated as a natural and probable result of the negligence found. Morey v. Lake Superior T. & T. Co. 125 Wis. 148, 103 N. W. 271. The owner of the property destroyed by the fire did not give the notice of claim of damages to her property by the fire as prescribed by sec. 1816b, Stats. (Supp. 1906). The only notices given the railway company within the year from the day the fire occurred, demanding satisfaction for damages to this property on account of such fire, were those of the insurance companies. Sec. 18166 prescribes what the notice shall contain and that it is to be “signed by the party owning such property . . . his agent or attorney.” It is obvious that the object and purpose of this notice is to notify the rail — 329 — way company tbat satisfaction will be demanded for alleged ■damages occasioned by fire set from a locomotive and to apprise it of the time and place of the fire so as to enable the ■company to make any defense it may have against such claim. This notice is mandatory and a prerequisite to the right to enforce such a claim in the law. Atkinson v. C. & N. W. R. Co. 93 Wis. 362, 67 N. W. 703. A strict construction of the language of the statute would require that all notices be signed by the owner of the property destroyed, his agent or attorney. The object and purpose of the statute is evidently to give railroad companies notice of a •claim for damages from locomotive fires, of the person making such claim, and the time and place of fire. We perceive no reason why this purpose is not as fully accomplished when the notice is given by the person holding the claim under an assignment as when given by the original owner of the property. Under such circumstances the statute should receive liberal construction. Considering it in this light, we are led to the conclusion that the rights of the railroad company are fully preserved by a notice conforming to the statute when signed by the assignee or subrogee of the original owner of the property destroyed or by an agent or attorney. The insurance companies stood in this relation to the owner of the property. Their right to maintain action against railroad companies for wrongfully causing a loss, upon payment of the loss to the owner, has been repeatedly affirmed. • Sims v. Mutual F. Ins. Co. 101 Wis. 586, 77 N. W. 908, and cases cited. This results in giving them the right to take the necessary steps to enforce the claim against the company for its wrongful destruction of the property insured, and a notice signed by their authority fulfils the calls of the statute. There is no dispute as to the giving of such notice within the limits of the time prescribed. It must be held that the statute has been complied with. The exceptions to rulings as to the admission and rejection — 330 — of evidence we do not find to be well taken. Discussion of all of them is not necessary. The exception to admission of the evidence of the witness Connor pertains to the failure of the railroad company to furnish cars for shipping the wood. The object of this evidence was plainly indicated by the questions propounded; yet appellant’s counsel permitted the witness to be examined on the subject without objection and then moved to strike out the testimony. The court properly ruled that the objection came too late, and therefore refused to strike out the evidence. Furthermore, we discover no prejudice resulting from its admission had the objection been timely. Nor do we discover any prejudicial effect in refusing the instructions requested,, that there was no evidence on the subject of not furnishing cars when demanded. Error is assigned that the court erroneously permitted the jury, under its instructions, to find that the fire was set by engines other than the two referred to in the evidence. This is negatived by the direction given them that they were to consider only such engines as the evidence showed passed the piles of wood. It is urged that the remarks of counsel pertaining to the production of the notices served on appellant; his conduct in propounding improper inquiries to the appellant’s claim-agent and section foreman; his assertion that engines generally emitted sparks and that defendant should have piled its wood where it thereafter piled it, namely, a mile or two distant, all operated to prejudice the jury to an extent so as to-render them incapable of arriving at a just verdict. We are not persuaded that counsel’s conduct had such prejudicial effects, and do not think that the conclusion of the trial court should be disturbed. The denials of the applications for change of venue are abundantly justified by the record. Trial courts are vested with a large discretion in passing upon such applications. — 331 — The facts before the court in this case, as presented in an unusually large number of affidavits and by the subsequent examination of the jurors on the subject, clearly show that the trial court properly held that no grounds were shown calling for a change of venue of the case. Upon defendant’s motion for a review of the taxation of costs by the clerk, the court modified the clerk’s action by striking out certain items taxed, and refused to modify the bill allowed as to the following items: $2.88 for notices under sec. 1816h, Stats. (Supp. 1906: Laws of 1899, ch. 301). This was proper under the third paragraph of sec. 2921. $36.90, sheriff’s fees for serving summons. Appellant contends the charge should be itemized to authorize its allowance. There is no affirmative showing that the item is excessively incorrect. Under Jones v. Foster, 67 Wis. 296, 313, 30 N. W. 697, the court properly allowed this item. $35.40 for stenographer’s fees in taking a deposition before a justice of the peace. Upon objection to this item the bill was amended by changing the charge so as to make it a fee of the justice. The item then equaled the twelve cents per folio.-allowed the justice. This item as finally charged was the correct amount to which the justice was entitled. Certain witness fees allowed by the clerk were held improper by the court because such witnesses were allowed fees for attendance both at the taking of their depositions and also at the trial. The court refused to allow fees for their attendance while their depositions were taken, and allowed a per diem and fees for travel for attending court during the trial of the cause. This was proper and correct. We find no reversible error in the record. By the Court. — Judgment affirmed.