Pribonic v. Fulton

190 N.W. 190, 178 Wis. 393, 27 A.L.R. 281, 1922 Wisc. LEXIS 48

• Court: Wisconsin Supreme Court
• Decided: October 10, 1922
• Status: Published

Opinions

Doerfler, J.

The controlling question confronting this court for its determination is involved in the error assigned by defendants’ counsel, in which he contends that at the close of the evidence the court should have directed a verdict in defendants’ favor. In considering this question let it be said that the verdict of the jury wherein it is found that the defendant Harry Fulton negligently set this fire and permitted it to escape upon plaintiffs’ property, to their damage, and that such negligence constituted the proximate cause of such damage, is well supported by the evidence. Can it be held, however, as a matter of law, under the facts and circumstances as detailed in the above statement of facts, that the plaintiffs were also guilty of negligence which proximately contributed to the damage by failing to properly and timely make efforts to extinguish the fire during the time when such fire was subject to control and extinction on their part?

This question is no longer an open one in this state, and is ruled by the case of Brunner v. M., St. P. & S. S. M. R. Co. 155 Wis. 253, 143 N. W. 305, 144 N. W. 986, in which case, in the opinion of the court by Mr. Justice Barnes, it is held:

“As owner of the property exposed to destruction and knowing of the existence of the fire, he [the plaintiff] 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. 76 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.

The plaintiffs had full knowledge of the starting of the fire on the afternoon of the 3d of October, and the evidence clearly shows that they realized and appreciated the danger to their property in the event of the spread of the fire; in fact, Matt Pribonic in his testimony clearly expressed the thought that he entertained such apprehension at that time. There was no time during the interval between the setting of the fire and the early morning of the 7th of October that the same was not under the control of and subject to extinction by the plaintiffs. Not the slightest effort was made on their part to prevent the further spread of the fire or to extinguish the same until the fire had gone beyond their control. It is true that the possibility existed that had the plaintiffs abandoned their work for the defendants they might have subjected themselves to a deduction of wages on the latter’s part. The defendant La Fayette J. Fulton during the entire period while the fire raged not only had no knowledge of the existence of the same but lived in the city of Minneapolis, far distant from the scene of the conflagration. Harry Pulton resided in the city of Bayfield and spent most of his time upon the lands of his father, La Fayette J. Fulton, located some distance from the plaintiffs’ farm. During nearly all the time while the fire raged the same was under the observation and clearly within the view of the plaintiff Matt Pribonic, and during the entire time prior to October 5th was within the knowledge and the view of Nick Pribonic. No effort whatever was made to extinguish the fire until Matt returned to his land at about 10 o’clock on the morning of the 7th of October, at which time a heavy wind blew from the west, which so rapidly spread and fed the flames as to prevent any possibility of extinguishing the same with the help and the equipment which was then available.

Under the circumstances detailed, can it be said that the plaintiffs discharged the obligations imposed upon them by law, as required in the Brunner Case, supra, and did they use reasonable precaution to prevent the destruction of their property? This obligation is not merely a legal obligation but is also a moral one. At or about the time of the fire a drought had prevailed for a considerable period of time in the locality where these lands were situated. There was a scarcity of water, and other fires were raging upon lands not far distant from those in question. Not only were their interests at stake but also the lives and limbs of settlers. The evidence clearly shows that while the plaintiffs fully appreciated this danger they took absolutely no steps whatsoever to prevent damage and injury until the fire had passed beyond their control.

We must therefore hold that the plaintiffs were guilty of negligence which proximately contributed to the damage, and under, such holding we decide that the motion for a direction of a verdict should have been granted. Under the view taken by the court as above expressed, it becomes unnecessary to consider any of the other assignments of error of defendants’ counsel.

By the Court. — Judgment of the court below is reversed, and the cause remanded with instructions to dismiss the complaint.