Pinney, J.
1. It is contended by the appellants’ counsel that, if the findings set aside by the circuit court were contrary to the uncontradieted evidence, that court could not afterwards give judgment for the defendant upon the remaining findings and such uncontradicted evidence in favor of the defendant, but should have granted a new trial. It is proper to notice at the outset that the defendant’s motion was not for judgment upon the record and verdict, non obstante veredicto, nor was such a judgment rendered or its legal equivalent, but it was a judgment on the part of the special verdict remaining and upon the uncontradicted evidence, such evidence having the effect of a special finding (Murphey v. Weil, 89 Wis. 150), and both, taken together,, showing that the defendant was .entitled to judgment in its favor, and was to the same effect, in the present case, as if it had been rendered upon a verdict directed by the court in favor of the defendant. If, upon the remaining findings and the uncontradicted evidence, the law was with the defendant, there certainly was no ground for a new trial, and the judgment given accordingly should be sustained. If,, however, there was evidence in support of any material special finding set aside, the rule would be otherwise, and a new trial should have been granted, as in Annas v. M. & N. [458]*458R. Co. 67 Wis. 60, where it was held that the court, in view ■of the evidence upon the question of gross neglect, instead of amending the verdict and rendering judgment upon it, •should have granted a new trial, the question of gross negligence being one for the jury. It is only where there is no •evidence to support a material finding that it can be stricken 'from the record; but where it is against a decided preponderance of the evidence, upon setting it aside there should be a new trial. Ohlweiler v. Lohman, 82 Wis. 198; Dahl v. Milwaukee City R. Co. 65 Wis. 371; Schweickhart v. Stuewe, 75 Wis. 157. In Sheehy v. Duffy, 89 Wis. 13, there was evi dence in support of the finding of the jury, and therefore it was held that the finding could, not be amended by the •court, and a different one, in whole or in part, substituted in its stead. We have not been referred to any case which denies the right of the court to strike out findings contrary to the uncontradicted evidence, and to render judgment in •conformity with such evidence. The cases of Kennedy v. L. S. T. & T. Co. 87 Wis. 35, and Fish Greek B. & L. D. Co. v. First Nat. Bank, 80 Wis. 630, 634, were cases where this court had held the findings in the court below wholly unsupported on material points; and upon reversal for that ■cause, the actions being legal, this court, according to the usual rule in such cases, awarded new trials, there being no proper finding upon the entire issues remaining upon which it could direct judgment, it being the proper duty of the trial court in such actions to perfect the findings upon the issues, and render judgment, when proper, upon or according to the uncontradicted evidence.
The true rule is as above indicated, that findings contrary to the uncontradicted evidence may be corrected in the trial .court, and judgment given upon and according to the uncon-tradicted evidence; but, if there is a conflict of evidence upon any material point involved, a new trial will be necessary. The fact that the court, of its own motion, embraced [459]*459the answer to the seventh question, if such it may he called, in its order setting aside part of the findings and directing judgment, was not an error prejudicial to the appellants, if the action of the court in giving judgment for the defendant was warranted by the un contradicted evidence. Besides, the answer was merely to the effect that the jury “did.not know ” whether the engine was properly managed when it passed the place where the fire was started. It was not equivalent to a finding of negligence in any proper sense, and it bore no relation to the only negligence found by the jury, namely, “careless inspection of netting in engine TTo. 2.” The action of the circuit court in thus giving judgment was correct in point of. practice.
2. The evidence produced on the part of the plaintiffs was sufficient to go to the jury, to show that the fire in question was set by the defendant’s switch engine, presumably by sparks or cinders thrown and escaping from it; but it does not follow from this fact that the defendant is liable for the ■consequences that ensued. In order to charge it with the loss of the plaintiffs’ lumber the fire must have been caused by the defendant’s negligence. It is a well-understood fact — so much so that courts may properly take notice of it as a '-matter of common knowledge — that no means or device that human ingenuity has as yet been able to produce wall wholly prevent the emission or throwing of sparks or cinders from railway locomotives. The evidence of experts on both sides establishes this fact. “ Some fire under all circumstances, and under even the best condition of the engine to prevent it, will sometimes escape. The presumption, therefore, of negligence or the want of proper equipments, arising from the mere fact of fire having escaped, is not conclusive, nor, indeed, a very strong one, but, of the two, rather weak and unsatisfactory. It is indulged in merely for the purpose of putting the company to proof and compelling it to explain and show, with a reasonable and fair degree .-of. certainty., [460]*460not by the highest and most clear and unmistakable kind of evidence, that it had performed its duty in this particular. Hence, evidence showing that the engines passing over a road were properly constructed and equipped, and were subjected to the vigilant and careful inspection of a competent and skilful person as often as once in two days, and found to be in proper order, would seem to satisfy the requirements, of the rule.” Spaulding v. G. do J5F. TV. JR. Go. 30 Wis. 122,123. The effect of such proof, with proof of proper management, is to overcome any inference of negligence on the part of the defendant arising from the mere fact that sparks and cinders did escape and communicate fire, to the plaintiffs’ injury. In the present case the precise manner in which the fire occurred was not observed by any one, but is wholly a matter of inference; and it is important to note that the case differs, in this respect, materially from the case of Kurz & H. I Co. v. M. & N. R. Co. 84 Wis. 171, and Stacy v. M., L. S. & W. R. Co. 85 Wis. 225, where the evidence indicated that the fire in question was caused, not by sparks or cinders thrown from the engine, but by coal and cinders dropped on the track under circumstances tending to show that the engine was not properly constructed and in good condition, or negligence in the management of it, and thus furnishing affirmative proof of negligence which would require the submission of the case to the jury, to determine whether the evidence introduced by the company to overcome the presumption mentioned was, in all material respects, worthy of credit. The cases of Brusberg v. M., L. S. & W. R. Co. 55 Wis. 106, and Mills v. C., M. & St. P. R. Co. 76 Wis. 422, turned upon similar grounds. We think that, the evidence produced by the defendant in relation to the condition of the engine, its management, and the inspection of it remaining wholly uncontradicted, the case falls within the rule on which this court acted in Spaulding v. C. & N. W. R. Co. 33 Wis.
Free access — add to your briefcase to read the full text and ask questions with AI
Pinney, J.
1. It is contended by the appellants’ counsel that, if the findings set aside by the circuit court were contrary to the uncontradieted evidence, that court could not afterwards give judgment for the defendant upon the remaining findings and such uncontradicted evidence in favor of the defendant, but should have granted a new trial. It is proper to notice at the outset that the defendant’s motion was not for judgment upon the record and verdict, non obstante veredicto, nor was such a judgment rendered or its legal equivalent, but it was a judgment on the part of the special verdict remaining and upon the uncontradicted evidence, such evidence having the effect of a special finding (Murphey v. Weil, 89 Wis. 150), and both, taken together,, showing that the defendant was .entitled to judgment in its favor, and was to the same effect, in the present case, as if it had been rendered upon a verdict directed by the court in favor of the defendant. If, upon the remaining findings and the uncontradicted evidence, the law was with the defendant, there certainly was no ground for a new trial, and the judgment given accordingly should be sustained. If,, however, there was evidence in support of any material special finding set aside, the rule would be otherwise, and a new trial should have been granted, as in Annas v. M. & N. [458]*458R. Co. 67 Wis. 60, where it was held that the court, in view ■of the evidence upon the question of gross neglect, instead of amending the verdict and rendering judgment upon it, •should have granted a new trial, the question of gross negligence being one for the jury. It is only where there is no •evidence to support a material finding that it can be stricken 'from the record; but where it is against a decided preponderance of the evidence, upon setting it aside there should be a new trial. Ohlweiler v. Lohman, 82 Wis. 198; Dahl v. Milwaukee City R. Co. 65 Wis. 371; Schweickhart v. Stuewe, 75 Wis. 157. In Sheehy v. Duffy, 89 Wis. 13, there was evi dence in support of the finding of the jury, and therefore it was held that the finding could, not be amended by the •court, and a different one, in whole or in part, substituted in its stead. We have not been referred to any case which denies the right of the court to strike out findings contrary to the uncontradicted evidence, and to render judgment in •conformity with such evidence. The cases of Kennedy v. L. S. T. & T. Co. 87 Wis. 35, and Fish Greek B. & L. D. Co. v. First Nat. Bank, 80 Wis. 630, 634, were cases where this court had held the findings in the court below wholly unsupported on material points; and upon reversal for that ■cause, the actions being legal, this court, according to the usual rule in such cases, awarded new trials, there being no proper finding upon the entire issues remaining upon which it could direct judgment, it being the proper duty of the trial court in such actions to perfect the findings upon the issues, and render judgment, when proper, upon or according to the uncontradicted evidence.
The true rule is as above indicated, that findings contrary to the uncontradicted evidence may be corrected in the trial .court, and judgment given upon and according to the uncon-tradicted evidence; but, if there is a conflict of evidence upon any material point involved, a new trial will be necessary. The fact that the court, of its own motion, embraced [459]*459the answer to the seventh question, if such it may he called, in its order setting aside part of the findings and directing judgment, was not an error prejudicial to the appellants, if the action of the court in giving judgment for the defendant was warranted by the un contradicted evidence. Besides, the answer was merely to the effect that the jury “did.not know ” whether the engine was properly managed when it passed the place where the fire was started. It was not equivalent to a finding of negligence in any proper sense, and it bore no relation to the only negligence found by the jury, namely, “careless inspection of netting in engine TTo. 2.” The action of the circuit court in thus giving judgment was correct in point of. practice.
2. The evidence produced on the part of the plaintiffs was sufficient to go to the jury, to show that the fire in question was set by the defendant’s switch engine, presumably by sparks or cinders thrown and escaping from it; but it does not follow from this fact that the defendant is liable for the ■consequences that ensued. In order to charge it with the loss of the plaintiffs’ lumber the fire must have been caused by the defendant’s negligence. It is a well-understood fact — so much so that courts may properly take notice of it as a '-matter of common knowledge — that no means or device that human ingenuity has as yet been able to produce wall wholly prevent the emission or throwing of sparks or cinders from railway locomotives. The evidence of experts on both sides establishes this fact. “ Some fire under all circumstances, and under even the best condition of the engine to prevent it, will sometimes escape. The presumption, therefore, of negligence or the want of proper equipments, arising from the mere fact of fire having escaped, is not conclusive, nor, indeed, a very strong one, but, of the two, rather weak and unsatisfactory. It is indulged in merely for the purpose of putting the company to proof and compelling it to explain and show, with a reasonable and fair degree .-of. certainty., [460]*460not by the highest and most clear and unmistakable kind of evidence, that it had performed its duty in this particular. Hence, evidence showing that the engines passing over a road were properly constructed and equipped, and were subjected to the vigilant and careful inspection of a competent and skilful person as often as once in two days, and found to be in proper order, would seem to satisfy the requirements, of the rule.” Spaulding v. G. do J5F. TV. JR. Go. 30 Wis. 122,123. The effect of such proof, with proof of proper management, is to overcome any inference of negligence on the part of the defendant arising from the mere fact that sparks and cinders did escape and communicate fire, to the plaintiffs’ injury. In the present case the precise manner in which the fire occurred was not observed by any one, but is wholly a matter of inference; and it is important to note that the case differs, in this respect, materially from the case of Kurz & H. I Co. v. M. & N. R. Co. 84 Wis. 171, and Stacy v. M., L. S. & W. R. Co. 85 Wis. 225, where the evidence indicated that the fire in question was caused, not by sparks or cinders thrown from the engine, but by coal and cinders dropped on the track under circumstances tending to show that the engine was not properly constructed and in good condition, or negligence in the management of it, and thus furnishing affirmative proof of negligence which would require the submission of the case to the jury, to determine whether the evidence introduced by the company to overcome the presumption mentioned was, in all material respects, worthy of credit. The cases of Brusberg v. M., L. S. & W. R. Co. 55 Wis. 106, and Mills v. C., M. & St. P. R. Co. 76 Wis. 422, turned upon similar grounds. We think that, the evidence produced by the defendant in relation to the condition of the engine, its management, and the inspection of it remaining wholly uncontradicted, the case falls within the rule on which this court acted in Spaulding v. C. & N. W. R. Co. 33 Wis. 591, in a case quite in point, and that the circuit court [461]*461properly held that such evidence should not be submitted to •the jury. The weight and effect of such • evidence, and the amount and character of proof necessary to overcome it, are questions for the court; but, in case of a conflict of testimony, the jury may determine what facts are proved. ¥e do not understand that there is any conflict of evidence in relation to the facts upon which the defendant relies to rebut the inference of negligence arising from the mere fact that the fire was communicated from sparks and cinders escaping from the defendant’s engine. The question was therefore wholly a question of law for the court whether the proof was sufficient for the purpose indicated. These views have been uniformly sustained in this state, and are in harmony with well-considered decisions elsewhere. "Wood, Railroads, 1576-1581. It appears to us that the evidence, much of which has been set forth, was amply sufficient, within the rule, to rebut all inference of negligence on the part of the defendant, and that the burden of establishing such negligence on its part as would justify a verdict in their favor remaining on the plaintiffs, and no such evidence having been produced, judgment was properly given for the defendant.-
It is urged that the circuit court erred in setting aside the answer to the seventh question in the special verdict, to the effect that the jury “ did not know ” whether the switch engine was properly managed when-it passed the place where the fire started, and that the answer was equivalent to a finding that the engine was not properly managed -when it set the fire. We are unable to understand how this can be maintained. Certainly, the jury have not affirmed that there was any such negligent management, and have confined their finding of negligence upon the part of the company wholly to “careless inspection of netting in engine No. 2.” This contention is entirely unfounded. We are unable to see that there was any evidence which would have supported such a finding.
[462]*462The finding in respect to careless inspection of netting is wholly unsupported by the evidence. It appears that there-was an inspection of the engine the evening after the fire,, and that it showed that the front end, netting, and pan, and the engine generally, were in good shape, and the evidence-showed that it had been managed in the usual manner, and that it was in good condition when inspected the night before the fire. The evidence of inspection is criticised, but it is clear and uncontradicted, and we think an engineer is presumably a competent person to make such inspections. The inspection on the evening of the 30th of September shows that any negligence of the defendant in not previously making proper inspection was not the proximate cause -of' the fire. There was no evidence to show that the engine was coaled up while going over the upgrade approaching the lumber yard, and the fact that a fire occurred from sparks or cinders which might have unavoidably escaped from the engine affords no presumption on the subject; nor does it appear that the engine was running at an unusual or improper rate of speed, so as to afford ground for the belief that the fire was occasioned by negligent conduct in that respect. The evidence is that it was running in the usual manner, and tends to show that the dampers were properly managed.
The evidence of fires having been caused by the engine in April, May, and June previous was not proper for the consideration of the jury upon the question of negligence whether the engine was out of repair at the time of the fire September 30th, for, waiving the question of remoteness in-point of time, it clearly appears that the conditions were entirely different; that the engine became out of repair to-such an extent that it had to be taken to the repair shops July 4th, where it was thoroughly overhauled and repaired,, remaining until August 2d, when it left the shops in excellent condition. Evidence that fires were caused during the time it was in the shops was stricken out. The evidence [463]*463as to fires in November and December, after the fire of September 30th, -was clearly incompetent, and was rightly stricken out. The evidence as to other fires in August and September is vague and too uncertain to be of any value. No witness identifies any one fire, giving any date, particular or approximate, within that period; and there was nothing to show, if any such occurred, that they were caused in a manner that indicated any want of repair or of proper, management of the engine, or that tended to contradict the-evidence on the part of the defendant, or to show that they were other than the result of the escape of small sparks or cinders which could not have been entirely prevented in the case of any engine in good repair, well constructed, and properly managed; and these remarks apply as well to the contention that, previous to the fire on September 30th, fire was communicated by sparks from this engine to a rotten pine stump about fifty feet from the main line. There was no evidence to show in either case that the sparks were of unusual size, or that they were thrown to an unusual distance. Allard v. C. & N. W. R. Co. 73 Wis. 165; Gibbons v. W. V. R. Co. 58 Wis. 335; Henderson v. P. & R. R. Co. 144 Pa. St. 461; Collins v. N. Y. C. & H. R. R. Co. 109 N. Y. 243; Flinn v. N. Y. C. & H. R. R. Co. 142 N. Y. 11.
Considerable evidence was directed at the trial to the relative merits of short front engines, as the one in question, and extension front engines, in respect to their ability to-prevent the escape of sparks and cinders. The evidence did. not tend to show any decided superiority of one over the other, but that both- kinds were of approved construction and in very general use, with others; and the court ruled that, unless it was a well-established fact that a certain plan or device was superior to all others, no company could beheld negligent in not using that device, although the court or jury might be convinced that it was the best device, and that it could not be found that the defendant was guilty of [464]*464negligence in using a short instead of an extension front engine. As applied to the evidence, the ruling was clearly correct. FraCe v. N. Y., L. E. & W. R. Co. 143 N. Y. 182, 187; Flinn v. N. Y. C. & H. R. R. Co. 142 N. Y. 11. But whether negligence would properly be imputable to a company under such circumstances becomes immaterial in view of the fact that in this case the jury found that the engine “ was properly constructed and equipped to prevent the escape of sparks and cinders.”
The presumption of negligence from railway fires is considered in a note to Barnowshi v. Helson (89 Mich. 528) in 15 L. R. A. 83, 40.— Rdp.
The court, for these reasons, properly directed judgment in favor of the defendant.
By the Court.— The judgment of the circuit court is affirmed.