The following opinion was filed March 21, 1893:
PiNNEY, J.
1. The complaint in this case limits the charge of negligence against the defendant to what transpired [234]*234while its train on the day in question was on the west side track, and hence the question whether train No. 12, engine No. 88, was in on that side track on that day was closely contested in a trial lasting over two weeks. The jury found that this train and engine went upon the west side track on that day “ as far north as the plaintiffs’ tramway leading east from the mill, or thereabouts,” which was beyond the point where the fire broke out. They also found that the fire, which originated in the second lumber pile south of the main tramway, “ originated from sparics or coals from locomotive No. 88,” and that the defendant “ was not guilty of negligence which caused the fire.” Whether this locomotive was at tk,e time in question in good condition, properly constructed with all the usual appliances for the prevention of the escape of fire, and whether it was properly handled and managed, were important matters bearing upon the question whether the defendant was guilty of negligence which caused the fire. The latter part of this proposition was submitted to the jury, and found, as we must assume, for the defendant; the former part — being the second question framed for special verdict — was taken from the jury by the court, and answered by it in the affirmative. Under the instructions of the court and the evidence, it is obvious that the jury based their finding as to the origin of the fire upon the evidence that, after the train had passed south and the fire had broken out, “ cinders resembling coals or ashes,” “ ashes, cinders, and coals,” “cinders and coals,” or “coals in very considerable quantity, from half a bushel to a bushel or two bushels,” as described by several witnesses, were found between the rails of the west side track over which the locomotive had passed, and that the fire could be traced from the track, in the sawdust, under the tramway and into the lumber pile from which it extended to the mill and lumber generally. This was evidence of a most important character, [235]*235strongly tending to show either that the locomotive was not carefully and properly managed, or that it was not properly constructed or in good repair and condition to prevent the escape of fire in such quantities. There was no evidence of any other fairly assignable cause for the escape of such a quantity of fiery matter upon.the track from the locomotive. While it may be conceded that the court could not direct a verdict for the plaintiffs on such evidence, it is entirely plain that the evidence of negligence was such that it could not have properly directed a verdict for the defendant. But the court did, in effect, direct a verdict upon the question as to the construction, condition, and repair of the locomotive, by assuming that there was no evidence before the jury to rebut the presumption arising from the testimony of the defendant’s witnesses upon that subject, and by taking the question from the jury, and directing an answer affirming that the locomotive was in good condition and properly equipped to prevent the escape of fire.
It is not material to inquire what the effect of the evidence produced by the defendant on this point would be if there was nothing in the case to rebut or contradict it. The question to be decided was one of negligence, and negligence, instead of being a fact in and of itself, is an inference from the facts and circumstances appearing in proof in each particular case. As each case depends so much upon its peculiar combination • of facts and circumstances and the inferences to be drawn from them, a decision in it cannot be considered as a precedent, binding and controlling in other cases. “Negligence is always to be deduced as an inference from several facts and circumstances disclosed by the testimony after their connection and relation to the matter in issue have been traced and their weight considered. It is only when the inference of negligence or the absence of it from the undisputed facts is inevitable [236]*236that the court will direct a verdict.” Langhoff v. M. & P. du C. R. Co. 19 Wis. 496; Hill v. Fond du Lac, 56 Wis.. 242; Valin v. M. & N. R. Co. 82 Wis. 1, 5, and cases there-cited. The evidence referred to, tending to show that the fire originated from sparks or coals dropped from locomotive No. 88, and that sparks, cinders, or coals were found on, the track soon after it had passed and the fire had broken out, and no other assignable reason appearing why they should be there, was of considerable probative weight to show that the locomotive was defective in structure and appliances, or out of repair, or that it was not properly and carefully handled and managed. As to the matter of structure of the locomotive, its-repair and appliances to prevent fire, the case was improperly taken from the jury, and it cannot be distinguished in this respect from the cases of' Kurz & H. L Co. v. M. & N. R. Co. 84 Wis. 171, and Brusberg v. M., L. S. & W. R. Co. 55 Wis. 106. It cannot be-known what conclusion the jury would have arrived at in respect to the defendant’s negligence had they been allowed to pass upon the entire case. This error the circuit court repeated and made emphatic by further instructing the jury that “ it appearing from the evidence that it [the locomotive] was properly constructed and provided with all the appliances usually in use to prevent the escape of fire, if the jury find from the evidence that the locomotive was properly handled and managed without negligence, even though fire did escape from the said locomotive upon the west side track, and communicate with refuse and combustible material which had been placed on and along the same, the jury must answer that the defendant was not guilty of negligence.” The court did instruct the jury that if cinders and coals escaped from the locomotive and caused the fire, and the amount of cinders' or coals ■ so allowed to escape was unusual or unnecessary, they might from such fact infer that the locomotive was not properly managed [237]*237or handled with ordinary care and prudence, and that the defendant was guilty of negligence. It is manifest that the case made by the evidence was in like manner open to an inference that the locomotive was not properly constructed and in good condition to prevent the escape of fire, and that therefore the defendant was guilty of negligence, and that the case ought to have been taken from the jury in that respect. The facts and circumstances in this case, adverted to, clearly distinguish it from the case 'of Spaulding v. C. & N. W. R. Co. 30 Wis. 110.
We cannot think that the suggestion of the circuit court in its decision on the motion for new trial, that “ the jury may have found that the fire was caused by sparks, as they had a right to do under the question,” is sustainable. There is really little or nothing in the case to justify such a theory, and it ‘ is in conflict with the answer to the third question, which includes coals as well as sparks. The third question and answer must, we think, be taken and,understood in connection with the instructions of the court and the evidence as to cinders, ashes, coals, and the like having-been found on the west side track soon after the train left it and when the fire had broken out, as being descriptive of what had so dropped from beneath the locomotive, and not of sparks which had escaped from the smokestack.
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The following opinion was filed March 21, 1893:
PiNNEY, J.
1. The complaint in this case limits the charge of negligence against the defendant to what transpired [234]*234while its train on the day in question was on the west side track, and hence the question whether train No. 12, engine No. 88, was in on that side track on that day was closely contested in a trial lasting over two weeks. The jury found that this train and engine went upon the west side track on that day “ as far north as the plaintiffs’ tramway leading east from the mill, or thereabouts,” which was beyond the point where the fire broke out. They also found that the fire, which originated in the second lumber pile south of the main tramway, “ originated from sparics or coals from locomotive No. 88,” and that the defendant “ was not guilty of negligence which caused the fire.” Whether this locomotive was at tk,e time in question in good condition, properly constructed with all the usual appliances for the prevention of the escape of fire, and whether it was properly handled and managed, were important matters bearing upon the question whether the defendant was guilty of negligence which caused the fire. The latter part of this proposition was submitted to the jury, and found, as we must assume, for the defendant; the former part — being the second question framed for special verdict — was taken from the jury by the court, and answered by it in the affirmative. Under the instructions of the court and the evidence, it is obvious that the jury based their finding as to the origin of the fire upon the evidence that, after the train had passed south and the fire had broken out, “ cinders resembling coals or ashes,” “ ashes, cinders, and coals,” “cinders and coals,” or “coals in very considerable quantity, from half a bushel to a bushel or two bushels,” as described by several witnesses, were found between the rails of the west side track over which the locomotive had passed, and that the fire could be traced from the track, in the sawdust, under the tramway and into the lumber pile from which it extended to the mill and lumber generally. This was evidence of a most important character, [235]*235strongly tending to show either that the locomotive was not carefully and properly managed, or that it was not properly constructed or in good repair and condition to prevent the escape of fire in such quantities. There was no evidence of any other fairly assignable cause for the escape of such a quantity of fiery matter upon.the track from the locomotive. While it may be conceded that the court could not direct a verdict for the plaintiffs on such evidence, it is entirely plain that the evidence of negligence was such that it could not have properly directed a verdict for the defendant. But the court did, in effect, direct a verdict upon the question as to the construction, condition, and repair of the locomotive, by assuming that there was no evidence before the jury to rebut the presumption arising from the testimony of the defendant’s witnesses upon that subject, and by taking the question from the jury, and directing an answer affirming that the locomotive was in good condition and properly equipped to prevent the escape of fire.
It is not material to inquire what the effect of the evidence produced by the defendant on this point would be if there was nothing in the case to rebut or contradict it. The question to be decided was one of negligence, and negligence, instead of being a fact in and of itself, is an inference from the facts and circumstances appearing in proof in each particular case. As each case depends so much upon its peculiar combination • of facts and circumstances and the inferences to be drawn from them, a decision in it cannot be considered as a precedent, binding and controlling in other cases. “Negligence is always to be deduced as an inference from several facts and circumstances disclosed by the testimony after their connection and relation to the matter in issue have been traced and their weight considered. It is only when the inference of negligence or the absence of it from the undisputed facts is inevitable [236]*236that the court will direct a verdict.” Langhoff v. M. & P. du C. R. Co. 19 Wis. 496; Hill v. Fond du Lac, 56 Wis.. 242; Valin v. M. & N. R. Co. 82 Wis. 1, 5, and cases there-cited. The evidence referred to, tending to show that the fire originated from sparks or coals dropped from locomotive No. 88, and that sparks, cinders, or coals were found on, the track soon after it had passed and the fire had broken out, and no other assignable reason appearing why they should be there, was of considerable probative weight to show that the locomotive was defective in structure and appliances, or out of repair, or that it was not properly and carefully handled and managed. As to the matter of structure of the locomotive, its-repair and appliances to prevent fire, the case was improperly taken from the jury, and it cannot be distinguished in this respect from the cases of' Kurz & H. L Co. v. M. & N. R. Co. 84 Wis. 171, and Brusberg v. M., L. S. & W. R. Co. 55 Wis. 106. It cannot be-known what conclusion the jury would have arrived at in respect to the defendant’s negligence had they been allowed to pass upon the entire case. This error the circuit court repeated and made emphatic by further instructing the jury that “ it appearing from the evidence that it [the locomotive] was properly constructed and provided with all the appliances usually in use to prevent the escape of fire, if the jury find from the evidence that the locomotive was properly handled and managed without negligence, even though fire did escape from the said locomotive upon the west side track, and communicate with refuse and combustible material which had been placed on and along the same, the jury must answer that the defendant was not guilty of negligence.” The court did instruct the jury that if cinders and coals escaped from the locomotive and caused the fire, and the amount of cinders' or coals ■ so allowed to escape was unusual or unnecessary, they might from such fact infer that the locomotive was not properly managed [237]*237or handled with ordinary care and prudence, and that the defendant was guilty of negligence. It is manifest that the case made by the evidence was in like manner open to an inference that the locomotive was not properly constructed and in good condition to prevent the escape of fire, and that therefore the defendant was guilty of negligence, and that the case ought to have been taken from the jury in that respect. The facts and circumstances in this case, adverted to, clearly distinguish it from the case 'of Spaulding v. C. & N. W. R. Co. 30 Wis. 110.
We cannot think that the suggestion of the circuit court in its decision on the motion for new trial, that “ the jury may have found that the fire was caused by sparks, as they had a right to do under the question,” is sustainable. There is really little or nothing in the case to justify such a theory, and it ‘ is in conflict with the answer to the third question, which includes coals as well as sparks. The third question and answer must, we think, be taken and,understood in connection with the instructions of the court and the evidence as to cinders, ashes, coals, and the like having-been found on the west side track soon after the train left it and when the fire had broken out, as being descriptive of what had so dropped from beneath the locomotive, and not of sparks which had escaped from the smokestack. The court, in view of the evidence, charged the jury that “ the claim of the plaintiffs is not that sparks escaped, but that cinders or coals or hot ashes were permitted and allowed to escape from the locomotive; and in determining what was the origin of the fire the jury are not to consider whether or not it might have originated from sparks which escaped from the locomotive,” and that “ there was no testimony which shows or tends to show that any sparks escaped from the defendant’s locomotive.” The questions propounded for a special verdict are to be considered as the language of the court, and are presumed to be founded on [238]*238the evidence, and it is to be presumed that the jury followed these clear and positive directions of the court. Again, the jurywere instructed not to consider any acts of negligence except those committed while the engine or train of defendant was upon the west side track; and with the high wind which prevailed at the time, if sparks escaped from the smokestack, it is clear that they would have been carried, before they would have fallen and kindled a lire, a considerable distance west of where the fire originated, and that, in order to have kindled it, they must have fallen directly to the ground by the side of the west side track,- — a conclusion, under the circumstances, quite unreasonable. The instructions of the court upon this point were founded apparently upon the impossibility of constructing and managing a locomotive so that it would not at times emit small sparks, and with a view to distinguish the case of such sparks from the considerable mass of cinders, hot ashes, and coals, which the evidence tended to show had been found on the west side track. Unless the third question and answer are to be so construed, the finding on this material point is ambiguous and uncertain, and therefore insufficient. There was very much in the evidence and the very positive instructions of the court to show that the jury must have found that the fire was caused by the coals, cinders, and hot ashes mentioned by the witnesses, and nothing really to show that it was caused by sparks from the locomotive, as distinguished from the matters thus deposited on the track. If the question and answer and these instructions and the evidence, considered together, were not properly understood by the jury in the manner we have suggested, then the question and instructions must be held as confusing and misleading, and the instructions as erroneous.
The error of the court in taking the consideration of the second question from -the jury and answering it, holding in [239]*239effect that the evidence of the defendant on that subject was conclusive, and the giving of the further instruction in relation thereto already noticed, tended to and manifestly did prejudice the case of the plaintiffs in respect to the question propounded by the fourth question to the jury, — ■ whether defendant was guilty of negligence which caused the fire,— and may have controlled the action of the jury in acquitting the defendant of the charge of negligence.
2. It is contended, however, that the judgment may notwithstanding be supported by the fifth finding,— that the plaintiffs were guilty of a want of ordinary care and prudence which contributed to the starting of the fire in the pile of lumber. There was little evidence on this subject beyond the statements in the complaint, referred to, and the fact, which is of common knowledge, that the grounds around this, as all other such mills, are to a considerable extent covered - with sawdust, and some testimony that edgings and debris to some extent had accumulated under the tramway,— a necessary result, to some extent, in the operation of any such mill. There is nothing to show that there was an unusual or dangerous condition of affairs in these respects, or that the plaintiffs were guilty of any specific act or omission of a negligent character, or that they failed to provide and keep means for the prompt extinguishment of incipient fires. The court states in its opinion, which is the preamble to the order refusing a new trial and directing judgment to be entered on the verdict, that the finding of contributory negligence “ is clearly against the evidence. Had the jury found that the defendant was guilty of negligence, then the plaintiffs would have been clearly entitled to a new trial.” The court had means of forming a correct judgment on this question which are denied to us, and, having listened to all the evidence and observed- all that transpired on the trial, we must regard its judgment on this point as controlling and as practically setting aside this finding, even though it is said it became [240]*240immaterial as the jury found that the defendant was not guilty of any negligence. In Doherty v. State, 84 Wis. 152, we gave controlling effect to a like certificate of the circuit court as against the finding of the jury upon slender or apparently insufficient evidence.
We conclude, therefore, that the motion to set aside the verdict on this ground and for error in the instructions of the court, and in taking from the jury the second question and directing an answer thereto, should have been granted. This renders a reversal of the judgment of the circuit court necessary, and hence the appeal of the defendant from the taxation of costs fails, and it must be dismissed.
By the Oourt.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial. The defendant’s appeal from the taxation of costs is dismissed with costs'.
A motion for a rehearing on the plaintiffs’ appeal was denied May 23, 1893.