Kazmierczak v. Kokot

143 N.W. 661, 154 Wis. 599, 1913 Wisc. LEXIS 272

• Court: Wisconsin Supreme Court
• Decided: October 28, 1913
• Status: Published

Opinion

TimliN, J.

After a special verdict a new trial was granted without costs on the ground that the special verdict was “inconsistent” and contrary to the law and the evidence and not sustained by the evidence. The verdict found for the defendant upon the question of his alleged negligence in setting a fire on his land which spread to the adjoining land of the plaintiff and that the defendant used ordinary care and prudence in managing said fire and in preventing it from escaping and getting on plaintiff’s land. The fire did burn and damage plaintiff’s wood, timber, trees, and fence, and the fire was the proximate cause of the burning of plaintiff’s property. The plaintiff in the exercise of ordinary care could have saved his property or some part of it and prevented the same from being burned after he saw or knew there was danger of its destruction. There was evidence for and against these findings.

“Inconsistent” may not be the right word to describe the defects in the verdict, but the verdict was certainly defective. The sixth question finds only the very obvious and irrelevant truth that “the fire so set by defendant” was “the proximate cause of the burning;” while the seventh question finds that the plaintiff by the exercise of ordinary care might have saved his property or some part of it. The new trial granted upon both grounds above stated might well have been granted without costs. We perceive no error in the order appealed from.

By the Court. — Order affirmed.