The following opinion was filed October 7, 1913:
BaeNes, J.
Tbe appellants insist that tbe judgment is erroneous and should be reversed on tbe following grounds: (1) There was no evidence showing or tending to show that the defendant railway company either owned or operated the railroad or spur track in question; (2) the plaintiff assumed the hazard which caused the destruction of his property; (3) the plaintiff was a trespasser or at best a mere licensee, toward whom the defendants owed no duty except to refrain from acts wilfully injurious; and (4) the plaintiff was guilty of contributory negligence.
The conclusion reached on the question of contributory negligence obviates the necessity of considering any of the other. assignments of error.
The property destroyed consisted of hemlock and basswood bolts and kiln wood. The amount found by the jury was 1,400 cords. About 300 cords of the kiln wood had been piled along the spur track for more than a year before the fire. This wood was fuzzy and rotten and extremely dry and inflammable, as much so as tobacco or cotton, according to plaintiff’s evidence. The rest of the wood had been hauled during the winter preceding the fire. The fire that destroyed the wood was set by a passing locomotive between 10 and 11 •o’clock on the forenoon of May 4, 1911. The weather was and had been dry for some time before the fire. The plaintiff owned the northeast quarter of section 34, township number 29 north, of range 2 east, in Marathon county. Tile railroad ran through this land in a northeasterly and [256]*256southwesterly direction. The spur track in question was on the southwest quarter of the .northeast quarter of the aforesaid section and on the northerly side of the main track. The fire caught on the right of way on the southerly side of the track and opposite where the wood was piled. There was no wood piled on the south side. The plaintiff and one of his employees were at work four or five hundred feet from where the wood was piled when the engine passed which the jury found set the fire, and they discovered the fire almost immediately after the train passed. The plaintiff’s land on the south side of the track was cut over and there was considerable debris thereon, and the railroad right of way was also badly littered with the debris usually found after forest products have been removed and the land has not' been cleared up. There was a moderately brisk northwesterly wind on the day on which the fire was set, as well as on the day following. The wind went i down toward evening on the 4th and 5th of May. On May 6th the wind changed and blew more strongly than on the preceding days and from the southwest .and drove the fire across the track and into the plaintiff’s wood.
The undisputed evidence tends to establish some facts which it is difficult for any one who has ever seen a forest fire, or for any one who hasn’t for that matter, to understand and harmonize. It is undisputed that it had been very dry for some time before the fire; that there was a brisk wind blowing; that' there were old logs, stumps, tree tops, small balsam trees, and grass and weeds in abundance in the path of the fire, and yet on the day it started it only burned over a strip about 100 feet wide and from 100 t'o 200 feet long. On the second day the area burned over was no greater, and on the third, day the fire spread over a somewhat larger territory. The fire spread very little during either night. It is a fair conclusion to draw from the evidence that during the first forty-five hours that elapsed after the fire started, [257]*257it did not run over to exceed wbat would be one balf of an ordinary sized block in a city or village.
The jury found that the defendants ought reasonably to have anticipated under all the circumstances that the fire set might probably reach and burn .the plaintiff’s forest products as a natural and probable result. If the defendants were bound to anticipate the burning of plaintiff’s property, then assuredly the -plaintiff was bound to anticipate that it' would be .burned as a natural and probable result of the fire. The plaintiff’s conduct' after he discovered the fire must be judged in the light of the anticipation that the fire would probably reach and destroy his property. He lived only eighty rods from the spur track. He had been working around there on and off for a couple of years, and knew the condition of the right of way as well as of his own land-adjacent thereto. He was practically on the ground when the fire started, working with one of his employees. • He testified that immediately after the train passed he saw the blaze that set the fire. Another of his employees was on the ground .in the afternoon, but apparently took-no very -active part in putting out the fire; at least.he carried no water. Plaintiff knew of its progress during the fifty-odd hours that elapsed between the time it started and the time it reached his wood. As owner of the property exposed to destruction and knowing of the existence of the fire, he was bound to use all reasonable precautions to prevent its destruction, and if he failed to perform the duty which the law enjoined on him in this regard, he was guilty of contributory negligence, which in law precludes a recovery. Kellogg v. C. & N. W. R. Co. 26 Wis. 223; Mills v. C., M. & St P. R. Co. Wis. 422, 45 N. W. 225; Austin v. C., M. & St. P. R. Co. 93 Wis. 496, 67 N. W. 1129; Gibbons v. Wis. Valley R. Co. 62 Wis. 546, 22 N. W. 533.
Does the undisputed evidence show that the plaintiff was guilty' of' contributory negligence ? There is in fact no dis[258]*258pute in tbe evidence upon tbe question,. It was given by tbe plaintiff and bis brother-in-law. Tbe circuit judge, in bis opinion on tbe motion for judgment by defendants after verdict, said that be bad grave doubt on this question, but ■concluded that negligence on ¿daintifPs part was not so clearly established that reasonable minds might' not differ on tbe subject.
It might be here remarked that if this fire bad been set in tbe plaintiff’s wood without any other act of negligence on tbe part of tbe railway company than that of allowing tbe material to remain on it's right of way tbe length of time which it did, and the fire communicated to the property of a third person, the defendant railway company would be liable for the resulting damages under the doctrine of Theresa Village Mut. F. Ins. Co. v. Wis. Cent. R. Co. 144 Wis. 321, 128 N. W. 103. Tbe case under consideration presents a more aggravated situation than did the Theresa Case. The right of way and land adjacent thereto contained a lot of combustible material. Tbe wood was of tbe same character in a large part, and it was permitted to remain on tbe right of way nearly a year longer. Tbe amount of material stored was considerably larger. If it would be negligence for the railway company to permit the wood to remain, it would certainly be negligence for the owner to do so. It was tbe duty of tbe plaintiff, under the decision cited, to have shipped his wood before the fire. Had he done so, it would not have burned. Rut, assuming that this act of negligence would not be a defense against negligence on tbe part of tbe defendants, we think the evidence failed to show that tbe plaintiff used reasonable diligence to put out a fire that he had reason to anticipate would probably destroy his property if not brought under control.
Free access — add to your briefcase to read the full text and ask questions with AI
The following opinion was filed October 7, 1913:
BaeNes, J.
Tbe appellants insist that tbe judgment is erroneous and should be reversed on tbe following grounds: (1) There was no evidence showing or tending to show that the defendant railway company either owned or operated the railroad or spur track in question; (2) the plaintiff assumed the hazard which caused the destruction of his property; (3) the plaintiff was a trespasser or at best a mere licensee, toward whom the defendants owed no duty except to refrain from acts wilfully injurious; and (4) the plaintiff was guilty of contributory negligence.
The conclusion reached on the question of contributory negligence obviates the necessity of considering any of the other. assignments of error.
The property destroyed consisted of hemlock and basswood bolts and kiln wood. The amount found by the jury was 1,400 cords. About 300 cords of the kiln wood had been piled along the spur track for more than a year before the fire. This wood was fuzzy and rotten and extremely dry and inflammable, as much so as tobacco or cotton, according to plaintiff’s evidence. The rest of the wood had been hauled during the winter preceding the fire. The fire that destroyed the wood was set by a passing locomotive between 10 and 11 •o’clock on the forenoon of May 4, 1911. The weather was and had been dry for some time before the fire. The plaintiff owned the northeast quarter of section 34, township number 29 north, of range 2 east, in Marathon county. Tile railroad ran through this land in a northeasterly and [256]*256southwesterly direction. The spur track in question was on the southwest quarter of the .northeast quarter of the aforesaid section and on the northerly side of the main track. The fire caught on the right of way on the southerly side of the track and opposite where the wood was piled. There was no wood piled on the south side. The plaintiff and one of his employees were at work four or five hundred feet from where the wood was piled when the engine passed which the jury found set the fire, and they discovered the fire almost immediately after the train passed. The plaintiff’s land on the south side of the track was cut over and there was considerable debris thereon, and the railroad right of way was also badly littered with the debris usually found after forest products have been removed and the land has not' been cleared up. There was a moderately brisk northwesterly wind on the day on which the fire was set, as well as on the day following. The wind went i down toward evening on the 4th and 5th of May. On May 6th the wind changed and blew more strongly than on the preceding days and from the southwest .and drove the fire across the track and into the plaintiff’s wood.
The undisputed evidence tends to establish some facts which it is difficult for any one who has ever seen a forest fire, or for any one who hasn’t for that matter, to understand and harmonize. It is undisputed that it had been very dry for some time before the fire; that there was a brisk wind blowing; that' there were old logs, stumps, tree tops, small balsam trees, and grass and weeds in abundance in the path of the fire, and yet on the day it started it only burned over a strip about 100 feet wide and from 100 t'o 200 feet long. On the second day the area burned over was no greater, and on the third, day the fire spread over a somewhat larger territory. The fire spread very little during either night. It is a fair conclusion to draw from the evidence that during the first forty-five hours that elapsed after the fire started, [257]*257it did not run over to exceed wbat would be one balf of an ordinary sized block in a city or village.
The jury found that the defendants ought reasonably to have anticipated under all the circumstances that the fire set might probably reach and burn .the plaintiff’s forest products as a natural and probable result. If the defendants were bound to anticipate the burning of plaintiff’s property, then assuredly the -plaintiff was bound to anticipate that it' would be .burned as a natural and probable result of the fire. The plaintiff’s conduct' after he discovered the fire must be judged in the light of the anticipation that the fire would probably reach and destroy his property. He lived only eighty rods from the spur track. He had been working around there on and off for a couple of years, and knew the condition of the right of way as well as of his own land-adjacent thereto. He was practically on the ground when the fire started, working with one of his employees. • He testified that immediately after the train passed he saw the blaze that set the fire. Another of his employees was on the ground .in the afternoon, but apparently took-no very -active part in putting out the fire; at least.he carried no water. Plaintiff knew of its progress during the fifty-odd hours that elapsed between the time it started and the time it reached his wood. As owner of the property exposed to destruction and knowing of the existence of the fire, he was bound to use all reasonable precautions to prevent its destruction, and if he failed to perform the duty which the law enjoined on him in this regard, he was guilty of contributory negligence, which in law precludes a recovery. Kellogg v. C. & N. W. R. Co. 26 Wis. 223; Mills v. C., M. & St P. R. Co. Wis. 422, 45 N. W. 225; Austin v. C., M. & St. P. R. Co. 93 Wis. 496, 67 N. W. 1129; Gibbons v. Wis. Valley R. Co. 62 Wis. 546, 22 N. W. 533.
Does the undisputed evidence show that the plaintiff was guilty' of' contributory negligence ? There is in fact no dis[258]*258pute in tbe evidence upon tbe question,. It was given by tbe plaintiff and bis brother-in-law. Tbe circuit judge, in bis opinion on tbe motion for judgment by defendants after verdict, said that be bad grave doubt on this question, but ■concluded that negligence on ¿daintifPs part was not so clearly established that reasonable minds might' not differ on tbe subject.
It might be here remarked that if this fire bad been set in tbe plaintiff’s wood without any other act of negligence on tbe part of tbe railway company than that of allowing tbe material to remain on it's right of way tbe length of time which it did, and the fire communicated to the property of a third person, the defendant railway company would be liable for the resulting damages under the doctrine of Theresa Village Mut. F. Ins. Co. v. Wis. Cent. R. Co. 144 Wis. 321, 128 N. W. 103. Tbe case under consideration presents a more aggravated situation than did the Theresa Case. The right of way and land adjacent thereto contained a lot of combustible material. Tbe wood was of tbe same character in a large part, and it was permitted to remain on tbe right of way nearly a year longer. Tbe amount of material stored was considerably larger. If it would be negligence for the railway company to permit the wood to remain, it would certainly be negligence for the owner to do so. It was tbe duty of tbe plaintiff, under the decision cited, to have shipped his wood before the fire. Had he done so, it would not have burned. Rut, assuming that this act of negligence would not be a defense against negligence on tbe part of tbe defendants, we think the evidence failed to show that tbe plaintiff used reasonable diligence to put out a fire that he had reason to anticipate would probably destroy his property if not brought under control.
In tbe first place, it seems well nigh incredible that a woods fire which was only able to cover a space 100 feet wide by 100 to 200 feet in length from before 11 o’clock in tbe [259]*259morning until 6 o’clock in the evening of May 4th, occurring during a dry time and fanned by a wind, could not, with a reasonable endeavor on the part of the plaintiff and his employees, have been prevented from spreading further. What is true of May 4th is just as true of May 5th and the early part of May 6th. ' •
In the next place, when plaintiff found he could not control the fire, -if he did so find, he neither notified the railway company nor his neighbors, nor called for any assistance from his neighbors until the fire reached his wood on May 6th. Then in less than half an hour he got fifteen or twenty of them to come to his assistance and they succeeded in saving a part of the wood. He had a number of neighbors living near him with whom he had telephone connections, -and he could also reach the agent of the railway company at "Abbotsford, four miles distant, in the same manner. It was the custom of the railway company to send men to put out fires that were running along its right of way, when notified of their existence. Although he permitted a lot of highly inflammable material to remain bn the badly littered up right of way for considerably more than a year, he never even took the precaution to keep a few barrels of water on the premises that would be handy for use in an emergency, lie abandoned the fire entirely on the night of May 4th and also on the night following. The wind was down on both nights and the fire spread very little. It at least seems incredible that the fire could not be put out. on either night in the little patch where it was working, had any reasonable effort been used. It is hardly ordinary care for a man to sit down after 6 o’clock and do nothing to prevent a fire from destroying his property, unless some reasonable excuse is offered for so doing. With the assistance of his men, it is obvious that this fire could have been put out1 or its spread prevented on either night. If his men refused to work, and his brother-in-law hardly would have done so, he might call [260]*260upon bis neighbors, but be did not’ even work bimself. The Big Eau Plaine river was within twenty or thirty rods of the wood yard, and there was also a spring not to exceed twenty or thirty rods away. There was not a shovelful of dirt thrown on the fire and no attempt made to throw up any embankment or dig any trench around it, although the testimony of the plaintiff showed that the shovel was an implement commonly used to fight forest fires by throwing up dirt' and stamping out the fire. What the plaintiff and his men did do was to carry some water from the spring for an hour or two on the first day and to brush away some leaves from the path of the fire on this and the succeeding days. But even this latter work they did not keep up. Part of the time they spend in simply watching the fire and part of the time in peeling the bark from the basswood bolts and doing other work around the wood piles that had no connection with the fire whatever.
Concerning his efforts to put out the fire on May 4th, the plaintiff, among other things, testified that he noticed it as soon as the train had gone by; that he was about 400 or 500 feet from the track; Frank Davis was with him; that they rushed down and saw it was burning pretty good and that he rushed up to his house and got some pails and they carried water from the spring and tried to put it out and couldn’t; that he did not know how many pails of water they used on it. They brought water there quite a while until the fire ran away from them t'o the south. It might be here remarked that the utmost extent to which the fire ran on May 4th did not exceed 200 feet in length by 100 feet in width. He further testified:
“Q. Did you try to put it out with anything else besides pails of water? A. No. Q. What else did you do that day to try to put it out? A. We didn’t do much of anything. We tried to put it out with water and we couldn’t do it. Q. How long did you keep up your efforts to put' it out with water ? A. We worked about an hour or two. Q. After that [261]*261wbat did you do ? A. Well, we kind of kept watcb of it. Tried to keep it from running further if we could. Q. What did you do to keep it from running? A. We kind of scratched the leaves away. Tried to make a track so that it could not get across. Q. Across what? A. Across the leaves. Q. How far did the fire go that day? A. It must have went a couple of hundred feet, something like that. ■Q. Toward the south ? A. Yes, and it spread some too. Q. How wide did it spread ? A. Might have spread a hundred feet. Q. What was there on this ground that the fire went over that ylay? A. There was brush and old logs— grass.”
Continuing, the witness said:
“We stayed there fighting it until about 6 o’clock. We went to dinner that day. Davis and I changed off. When it came 6 o’clock he and I left it. I went down after supper and looked .at it, but Davis didn’t. It was still burning after supper over this piece of land. Some places it was burning in logs and rubbish and stumps laying all over. I didn’t leave anybody there to watch it that night. Jacobi was there in the afternoon. He did not bring pails of water. Didn’t do anything after about 6 o’clock.”
Eeferring to the efforts made to put out or control the fire on the following day, the plaintiff testified that he got there in the morning about 1 o’clock.
“Q. What did you try to do then ? A. Couldn’t do much of anything; Q. What did you try to do ? A. Eire was all over. Hard chance to put it out. Q. What did you try to do? A. Well, we couldn’t do much of anything at all. Q. Did you try to do anything? A. Sure, we tried. Q. What did you try to do? A. We tried to scratch the leaves, you know, and get a track, and tried' to keep the fire from running across it, but it would get across. Q. This was still burning down toward the south, was it'? A. Yes. Q. When you got there on the morning of the 5th had it spread much during the night? A. It spread some, but it didn’t spread as much as it' did during the day. Q. Who did you have there helping you on the 5th ? A. Davis and Jacobi. Q. Did you work there all that day? A. No. [262]*262Q. How long did yon work? A. We worked so long as we see we couldn’t bold the fire from going any further. Q. How long was that? A. It' was maybe a couple of hours — three hours — four hours, or three or four hours that day ? you didn’t work any more ? A. IS that if there was sparks flying Q. How far did it burn that day ? a couple of hundred feet more, the neighborhood of 400 feet all together ? four hundred feet.” Q. You worked there two A. Yes. Q. And then o, we kept watch of it so we would keep that out. A. It must have burned Cj}. So that would make in A. Yes, three or
The witness further testified that they left the fire at 6 o’clock that evening, and that he went' down after supper and looked at it and that it was still burning; that there must have been a couple df hundred feet that was on fire, the way it' was running. There wasn’t as much flame as during the daytime, Plaintiff testified that on the morning of the 6th he got down there at Y o’clock. The fire was not' burning so hard; that it had gone down during the night; that he made an effort to put it out on the morning of the 6th.
“Q. What did you do? A. We tried to surround it the way we did the. other day. Q. Who was there to help you ? A. Edwin Jacobi. Q. Davis too ? A. Yes, Davis was there too. Q. You say you tried to surround it'. What did you do ? A. We tried to scratch a track the way I told you before and scratch the leaves away and try to keep it from running across. Some time after, the wind came up and it ran right across and got away just the same. I did not notify the railroad men that the fire was burning. They had employees running by there. I thought they saw the fire. I had a telephone in our house at that time connected with Abbotsford. I knew there were officers of the railway company at Abbotsford. I did not ask anybody except Davis and Jacobi to help me fight the fire while it was burning across the track — didn’t until it got into my wood.”
The witness further testified that the wind was blowing from the southwest on the morning of the 6th when he got [263]*263up. Went down to the fire between Y and 8 o’clock. Fire had sort of died down during the night. The fire was burning to the west side of the burned-over place on the 6th. Came up clpse to the previous burnings — way up to it all the way up to the track. The fire reached the track about 1 or 2 o’clock on the 6th. I was down there all the time. Edwin Jacobi and Frank Davis were with me right along. Of course we changed off to get our'dinner. We went to dinner that' day the same as other days, we changed off.
When the fire got across the track and into the wood the witness “hollered” for help and got fifteen or twenty men there in a very short time. The amount burned on the 6th was considerably more than on the 4th. The fire burned faster. Started all over on the wood, sparks flying over there, and it burned on top and on the sides and all over. Kiln wood was the nearest to the track. It was pretty dry. This light, loose, splintery, fuzzy stuff-, a pretty small spark will set to going — start almost as quickly as tobacco or cotton.
Edwin Jacobi, a brotberdn-law of the plaintiff, testified to substantially the same state of facts as the plaintiff. He said: We tried the best we could to put it out. I worked there all afternoon of the 4th. Qn the 5th I was there early in the morning. We worked there pretty near all day up to 4 o’clock; we could not cheek it then. On the 6th we was down there again and tried it,' but could not succeed in checking it. I was there when the wood yard burned. The wind was blowing from the southwest, and the fire came around, followed the outer edge of it. And as it came near the landing it spread out. It was somewhere near 2 o’clock before the-fire got into the yard on the 6th.
“Q. Didn’t you also work in the wood yard in the forenoon of the 6th? A. No. Q. Peeling holts and piling wood? A. About two or three hours of it', early in the morning before the wind arose. Q. And Davis worked some there also, [264]*264didn’t be? A. Not with me. Q. But elsewhere in the yard? A. He worked a little further up around the yard, not in the yard. Q. What was he doing ? A. Cleaning up also. Q. And piling also? A. Yes, sir. Davis did not do any peeling. While I worked there peeling and piling and cleaning I would look over at the fire occasionally and then peel and pile and look over at the fire again.”
Witness also testified that he worked in the wood yard on and off during May 5th, but did not do any work therein on the afternoon of May 4th.
The condition, then, on the morning of May 6th was this: The wind had changed’, and increased and was blowing so as to carry the fire toward plaintiff’s wood; the wood was dry and inflammable; the ground was dry and littered with dead tops, brush, and grass, and at the utmost' the fire was not more than 400 feet away from the wood. It was not only probable but inevitable that' the fire would reach the wood, unless it rained or the wind changed or there was some efficient work done to stop it. There is no claim that it' looked like rain and no reason to suppose that the wind would suddenly change. Yet with this situation before him, plaintiff not only failed to call for any help, but he kept his two employees, Davis and Jacobi, at their usual work in the wood yard for at least two or three hours in the morning. It is true Jacobi says that this occurred before the wind came up, but plaintiff said the wind had shifted during the night' and was blowing from the southwest in the morning when-he got up, but that' it got stronger during the day. AYe do not think there was any room for the jury to draw the inference from this testimony that the plaintiff used that degree of diligence in attempting to control this fire that an ordinarily prudent person would use wdio had every reason to anticipate and who in fact did anticipate that his property would in all probability be destroyed by fire unless its spread was prevented. No water was used after the first day. AVhat work was done thereafter consisted in putting out sparks and brushing away [265]*265leaves from the path of the fire. The fire had been driven back to the track and within a few feet of the plaintiff’s wood about noon of - the 6th. The plaintiff and his employees changed off and went to dinner as usual, but the fire did not reach the wood until between 1 and 2 o’clock, and it was not until then that help was called for. Until this fire got into the plaintiff’s wood it was" a diminutive affair. This is apparent from the small area which it covered and the character of the stuff on which it fed. If is something of a tax on one’s credulity to believe that its spread could not be prevented day or night by the plaintiff and his employees, had they made an intelligent and determined effort to do so. The attempts to stop this ‘fire, at least after the first day, were desultory and feeble and no attempt whatever was made to secure reinforcements. The witness DeLapp testified that plaintiff gave him as a reason for not getting help that he thought from the condition of the wind he would “let it burn and do away with the rubbish on that side of the track.” Plaintiff did not deny making this statement, except to this extent: .He said he did not remember of having made the statement and did not think he made it.
We hold that on the facts which are established by the evidence of the plaintiff without dispute, and in view of the existing conditions which were known to the plaintiff, he did not exercise that degree of care and caution to prevent the destruction of his property that the law required him to exercise, and that he has no right of recovery in this action.
By the Gourt. — The judgment of the circuit court is reversed, and the cause is remanded with directions to dismiss the complaint.