Atkinson v. Goodrich Transportation Co. , 60 Wis. 141 ( 1884 )

Tatloe,'J..

The learned counsel for the defendant has presented a very forcible argument, in which he endeavors to distinguish this case from the case of Kellogg v. C. & N. W. Py Co., 26 Wis., 223, and Brown v. C., M. & St. P. R’y Co., 54 Wis., 342, and presses upon this court the propriety of limiting the liability of a person who negligently sets fire to . a building, either to the value of the building first fired, or at most not to extend the liability beyond such other buildings as were necessarily destroyed by the mere fire of the conflagration of the first; and he insists that this court ought to hold, as a matter of law, that the burning of the plaintiff’s building in this case is a purely consequential and remote result of the fire kindled by the negligence of the defendant, and that its destruction was not the immediate or proximate result of the negligence of the defendant, admitting that the company is chargeable with negligence in firing the planing-mill.

After a careful consideration, of the argument of the learned counsel, we think that both the weight of authority and reason is against the rule contended for, and that the rule laid down by this court in Kellogg v. C. & N. W. R'y Co. and Brown v. C., M. & St. P. R'y Co., supra, and by the supreme court of the United States in the case of Mil. & St. P. R'y Co. v. Kellogg, 94 U. S., 469, in which the case of Kellogg v. C. & N. W. R'y Co., 26 Wis., 223, was quoted and approved, is the rational and bettor rule.

In the case in 94 U. S., supra, the court say: “The true rule is that what is the proximate cause of the injury is ordinarily a question for the jury. It is not a question of science or legal knowledge. It is to be determined as a fact in view of all the circumstances of fact attending it. The primary cause may be the proximate cause of the disaster, though" it may operate through successive instruments, as an article at the end of a chain may be moved by a force applied at the other end, that force being the proximate co.use of the movement; or as in the oft-cited case of the squib thrown in the market-place. 2 Bl. Rep., 892. The question always is, Was there an unbroken connection between the wrongful act and the injury, a continuous operation? Did the facts constitute a continuous succession of events so linked together as to make a natural whole, or was there some now and independent cause intervening between the wrong and injury? It is admitted that the rule is difficult of application. But it is generally held that in order to warrant a finding that negligence, or an act not amounting to wanton, wrong, is the proximate cause of the injury, it must appear that the injury was the natural and probable consequence of the negligence or wrongful act, and that it ought to have been foreseen in the light of the attending circumstances. These circumstances, in a case like the present, are the strength and direction of the wind, the combustible character of the elevator, its great height, and the proximity and combustible nature of the saw-mills and piles of lumber.” Pp. 474, 475.

¥e have taken the liberty of quoting at length from the case above cited, for the reason that the doctrine of the case has been approved by this court, and because the facts of that case are quite similar to the facts of the case at bar. The rule laid down in the case above cited has been approved by the following cases cited by the learned counsel for the respondent in his brief: Perley v. Eastern R. R. Co., 98 Mass., 414; Higgins v. Dewey, 107 Mass., 494; Ins. Co. v. Tweed, 7 Wall., 44; Ins. Co. v. Boon, 95 U. S., 117; Brady v. N. W. Ins. Co.. 11 Mich., 425; St. John v. A. M. F. & M. Ins. Co., 11 N. Y., 519; Butler v. Wildman, 3 Barn. & Ald., 398; Lund v. Tyngsboro, 11 Cush., 563; Barton v. Home Ins. Co., 42 Mo., 156; Marcy v. M.M. Ins. Co., 19 La. Ann., 388; Fent v. T., P. & W. R’y Co., 59 Ill., 349; Hoyt v. Jeffers, 30 Mich., 181; A. & E. R. R. Co. v. Gantt, 39 Md., 115, 141; Kuhn v. Jewett, 32 N. J. Eq., 647; Vandenburg v. Truax, 4 Denio, 464. The only cases which hold a different doctrine from that above cited are Ryan v. N. Y. C. R. R. Co., 35 N. Y., 210, and Penn. R. R. Co. v. Kerr, 62 Pa. St., 353. These cases were noticed and disapproved by this court in the case of Kellogg v. C. & N. W. R'y Co., 26 Wis., 223, as well as in many of the other cases above cited. The rule established by the cases abo've cited is approved in the English courts in the following cases: Vaughan v. Taff Vale R’y Co., 3 Hurl. & N., 743; Smith v. L. & S. W. R’y Co., L. R. 5 C. P., 98; Collins v. Middle Level Commissioners, L. R. 4 C. P., 279; Romney Marsh v. Trinity House, L. R. 5 Exch., 204; S. C., affirmed, L. R. 7 Exch., 247; Sneesby v. L. & Y. R'y Co., L. R. 9 Q. B., 263; The George and Richard, L. R. 3 Adm. & Ecc., 466; Byrne V. Wilson, 15 Ir. C. L., 332; Jones v. Boyce, 1 Stark., 493. Many other cases, both in England and in this country, might be cited holding the same general doctrine, but the foregoing we deem sufficient to fully justify, if any justification were necessary, the doctrine announced and approved of in the cases above cited from this court. In our opinion, upon the evidence in this case, it wras for the jury, and not the court, to say whether the negligence of the defendant was the proximate cause of the burning of the Atldnson house.

But the learned counsel for the appellant insists that the Atldnson house was at so great a distance from the point where the fire was kindled, admitting it to have been kindled by the negligence of the defendant, that there could be no reasonable apprehension on the part of an ordinarily prudent man thát the fire so kindled would extend to and burn such house. That question is also a question for the jury, and not of law for the court. The force of the wind at the time, the dryness of the season, and the combustible nature of the buildings intervening between the place where the fire was kindled and the place where the plaintiff’s house stood, were all facts to be considered in determining whether there was a reasonable probability that the fire would extend so far, and the jury must pass upon these facts as bearing upon the question of reasonable probability. The learned counsel for the appellants cite the case of T., W. & W. R'y Co. v. Muthersbaugh, 71 Ill., 572, as bearing upon this question. If that case was properly decided, we think the facts are so different from the facts in the case at bar as not to have any considerable force in the decision of this case. In that case the building burned was about 100 rods from the building first fired by the negligence of the .railway company, and there were no intervening buildings or combustible matter between the two buildings which might be a means of conveying the fire from the one to the other, and the court held, as a matter of law, that there was no reasonable probability of the fire extending from the first building to the second, and so directed a verdict for the defendant. The facts, in that case and the case at bar are so entirely different that the case is -no authority for holding that the question as to the probability of the fire extending to the plaintiff’s house is a question of law in this case.5 Judge Cooley, in his work on Torts, p. 11, says: “The negligent fire is regarded as a unity; it reaches the last building as a direct and proximate result of the original negligence, just as a rolling stone put in motion down a hill, injuring several persons in succession, inflicts the last injury as the proximate result of the original, force as directly as it does the first, though if it had been stopped on the way and started anew by another person, a new cause would thus have intervened back of which any subsequent injury could have been traced. Proximity of cause has no necessary connection with continuity of space or nearness in time.”

On the whole evidence in the case Ave think there was no error in refusing to order a nonsuit, or in refusing to direct a verdict for the defendant.

We will now consider the exceptions taken to the admission of the evidence objected to by the defendant, the exceptions to the rulings of the court as to the questions which should be submitted to the jury for their special verdict, the instructions asked by the defendant and refused, and the instructions given to which exceptions Avere taken.

The objections to the evidence relate to the ordinance of the city of Green Bay, which was offered by the plaintiff as evidence. There are several objections raised by the learned counsel for the appellant to the validity of this ordinance-: First, it is said to be a regulation of commerce, and therefore void; second, that it was a violation of the regulations of the inspectors of boats and vessels, and its use Avould endanger the boat, its cargo, and passengers; and, third, that it Avas an unreasonable ordinance. We do not feel called upon to determine whether the first and second objections to the ordinance were well taken, as we have come to the conclusion that the ordinance should either have been .rejected as an unreasonable ordinance, or its reasonableness should have been submitted to the jury. We are inclined to hold tbe ordinance unreasonable as a question of law, because it requires the boat-owner to use a spark-catcher, screen, or other device “substantially attached in or upon the smoke-stack or chimney, ... so as to prevent the escape of sparks or burning cinders therefrom as effectually as the same can be prevented any means known or in use for that purpose.” Under this ordinance every steamboat-owner, no matter how careful he had been to use the means of preventing the sparks from escaping from the smoke-stack of his boat while navigating the harbor, would still be liable for a violation of the ordinance if a jury could be satisfied that his device was not the best known or in use; and if the ordinance is to be strictly enforced he would be equally liable although the device used was as effective for the purpose as any other, if it were not substantially attached in or to the smoke-stack. Amidst the hundreds of devices known or used it would be very difficult, indeed, for the steamboat-owner to satisfy the requirements of the ordinance, and more difficult to satisfy a jury that he had in fact adopted the best known .one in use. A law which inflicts a penalty or punishment ought to be so plainly drawn as to clearly point out the act to be punished. This ordinance fails to do that, and is therefore, we think, unreasonable. Clason v. Milwaukee, 30 Wis., 316; Hayes v. Appleton, 24 Wis., 542; Barling v. West, 29 Wis., 307. If the evidence tended to show that a spark-catcher or other device fixed in or upon the smoke-stack of the boat endangered its cargo or passengers, then it would be a question for the jury whether such an ordinance was a ¡reasonable one.

We think the court erred in permitting the ordinance to be read to the jury, and in instructing the jury that it was negligence par se on the part of the defendant to run its boat into the harbor of Green Bay without first having provided it with a spark-catcher as required by the ordinance.

The appellant insists that the court erred in refusing to submit the questions above set out in the statement of facts to the jury as a part of their special verdict, and in refusing to give the instructions requested. These questions and instructions asked fairly raise the question whether, in an action to recover damages for the negligent act of the defendant, the plaintiff must, in order to establish the fact that the negligence of the defendant was the proximate cause of the injury complained of, show that it was reasonable to expect that such injury would result from such negligence. This question was, we think, answered in the affirmative by the supreme court of the United States in the case of Mil. & St. P. R’y Co. v. Kellogg, supra, (94 U. S., 469). The language of the courtis as follows: “But it is generally held that, in order to warrant a finding that negligence, or an act not amounting to wanton wrong, is the proximate cause of the injury, it must appear that the injury was the natural and probable consequence of the negligence or wrongful act, and that it ought to have been foreseen in the light of the attending circumstances.” This language is repeated by the learned judges who delivered the opinions in many of the cases above cited, in different forms, but all the judges using similar language seem to hold that negligence cannot be fairly said to be the proximate cause of an injury unless it appeai-s to be the natural and probable consequence of the wrongful act, and that it might or ought to have been foreseen under all the circumstances. Some of the cases use this language: “ The injury or the destruction of the property complained of was a result that might have been reasonably expected (though not, in fact, anticipated) from the defendant’s negligent act.” Del., L. & W. P. R. Co. v. Salmon, 39 N. J. Law, 311. The late learned Chief ■ Justice Dixon, in his very able and exhaustive discussion of this question in Kellogg v. C. & N. W. R'y Co., supra, (26 Wis., 281), uses this language: “ It will be observed that the rule, as we find it laid down and as we believe it to be, is not that the injury sustained must be the necessary or unavoidable result of the wrongful act, but that it shall be the natural and probable consequence of it or one likely to ensue from it.” Judge Redvield states the rule thus: “The defendant is liable for all those consequences which might have been foreseen and exj^ected as the result of his conduct, but not for those which he could not have foreseen and was therefore' under no moral obligation to take into consideration.” Cooley on 'Torts, 18, note. It would be an endless task to cite all the different forms of expression used by judges and writers to express the idea above stated.

The counsel for the appellant requested the circuit judge to instruct the jury as follows: “You cannot answer question number five‘Yes’ unless you find that while the boat was passing the planing-mill it was reasonable to expect that sparks, cinders, or coals from her smoke-stack would cause the destruction of Atkinson's house.” This instruction was refused, and it was repeated in different ways, but in substance the same, and all were rejected. Question five reads as follows: “Was the burning of the plaintiff John Atkinson's house the natural result of the burning of the planing-mill?” The court had refused to submit to the jury the question: “Was it reasonable to expect that the fire which destroyed the planing-mill would extend to and destroy the house of the plaintiff Atkinson?" and-the other question: “Was it reasonable to expect when the boat passed the planing-mill that the fire from her smoke-stack would set fire to the planing-mill?” • These two questions the court refused to submit to the jury, and, instead, submitted number five above quoted, so that the defendant was prevented from having the questions passed upon by the jury, unless the court instructed them as requested, although it did not follow logically that the jury might not have answered “ Yes ” to number five without finding that it was reasonable to expect that sparks, cinders, and coals from the smoke-staclc would cause the destruction of the plaintiff’s house.

"We think the decided weight of authority is in favor of the rule that in an action for negligence the defendant has the right to have the question submitted to the jury whether the result which is the -ground of action might, under all the circumstances have been reasonably expected, not by the defendant, -but by a man of ordinary intelligence and prudence; and we think it very clear that no such question was submitted to the jury either by the special verdict or by the instructions given. It would seem that it is not enough to prove that the result is the natural consequence of the negligence, although that-fact would be evidence tending to show that it might have been reasonably expected.

The question whether a result may'or may not be reasonably expected to follow certain acts is very material upon the question of negligence. A person is not called upon to use that degree of care against an improbable result which he would be bound to use against a probable one. The contradictory evidence in this case, as to the direction of the wind at the time the boat was passing up the river, is an apt illustration of the rule. If it had been conclusively established that the wind was blowing directly down the river, as contended for by the defendant’s witnesses, and so carrying the sparks emitted from the smoke-stack away from the buildings on the shore and over the water of the river, there would have been the greatest improbability of their setting fire to any of the buildings on the shore; -and if, by some unexpected and unexplained cause, the sparks from the smoke-stack had ignited a building on the shore, no jury in such case would be likely to say that such an accident should have been foreseen or have been reasonably expected to occur from so running the boat. On the other hand, if the evidence had been conclusive that the wind was blowing directly towards the shore, and carrying the sparks in that direction and among the buildings there situated, they could have well found that such an accident could have been reasonably expected as the result. A man is not bound to ward against a result which cannot be reasonably expected to occur, and negligence cannot be attributed to him for failing to do so. This is recognized by all courts in holding that a man in building a dam across a stream of water is not liable for damage which may result from an overflow above the dam, or from the destruction of property below by its giving way, if such overflow or breaking of the dam is caused by such an extraordinary flood as occurs only at very long intervals. lie is only bound to ■ guard against those floods which may reasonably be expected to and do occur as ordinary events. See Borchardt v. Wausau Boom Co., 54 Wis., 107, and cases cited.

The circumstances which do in fact exist are to be determined by the jury from all the evidence; and when they have determined what the circumstances were at the time, then they can, with some reasonable degree of certainty, determine the question whether the result could have been reasonably expected to occur, in the light of such circumstances. As this question was not submitted to the jury as a fact for them to find in their special verdict, and as the court refused to.instruct them that in order to charge the defendant with liability for the damage done to the plaintiffs the}7' must find that under all the circumstances the destruction of the plaintiff's house could have been reasonably expected to occur as the result of the defendant’s negligence, the circuit court committed an error for which the judgment must be reversed.

We do not understand that this ruling is in conflict with the case of Brown v. C., M. & St. P. R'y Co., 54 Wis., 342. In that case the contention was that the court should, as a question of law, determine that the damages sought to be recovered were not the result of. the defendant’s negligence. The question in that case was the same as raised by the defendant in this, on his motion for a nonsuit, which we hold was properly overruled in this case.

Another point was pressed with a- great deal of earnest-' ness upon the court by the learned counsel for the appellant, as conclusive against the right of the plaintiffs to recover. The jury found that the owner of the planing-mill was negligent in permitting shavings and sawdust to remain and accumulate between the mill and the dock, under the circumstances developed by the evidence, and it also appears quite conclusively that the fire which was kindled by the sparks emitted from the smoke-stack of the defendant’s boat (if any such fire was kindled) was kindled in these shavings and sawdust, and spread to the mill and fired that. It is claimed by the learned counsel that this negligence of the imll-owner was such an intervening cause between the negligence of the defendant and the final destruction of the plaintiff’s house that its destruction must be, in the law, attributed to such intervening cause, viz., the negligence of the mill-owner. The learned counsel for the appellant cites Wharton on Negligence as sustaining his proposition. Although this learned author has gone as far, if not farther, than any other in sustaining the views of the learned counsel, we think he does not sustain him upon the facts of the case at bar. In Wharton on Negligence, sec. 144, the author lays down this proposition: “The fact that another person contributed, either before the defendant’s interposition, or concurrently with such interposition, in producing the damage, is no defense.” lie gives the following as an illustration of the rule: “A. negligently leaves certain articles in a particular place. B. negligently meddles with them; Supposing B.’s negligence to be made out, and he a responsible person, under the limitations above expressed he cannot set up A.’s prior negligence as a defense.” This rule, applied to the case at bar, shows that the steamboat company is liable for the results of the fire kindled in the shavings negligently suffered to remain on the dock by the owner of the planing-mill, when it is once clearly established that they were fired by the negligence of the defendant. When the defendant sets them on fire by reason of its negligence, 33. negligently meddles with them, within the rule stated by the learned author.

Whether we consider the negligence of the owner of the planing-mill as an interposition before or concurrently with the negligence of the defendant in producing the damage, it is no defense to the plaintiffs’ action. This we think is fully established by nearly all the authorities, and, as we understand the rule as stated by Wharton, is not denied by him. In one sense the negligence of the owner of the planing-mill was concurrent with the negligence of the defendant'. The negligence of the owner of the mill was a continuing negligence; it was present and acting at the time of the negligence of the defendant; it aided in kindling the fire and spreading it to the mill, and from that to the surrounding buildings. The authorities cited by the learned counsel for the respondents fully establish the fallacy of this -objection made by the appellant. Cooley on Torts, 79; Ricker v. Freeman, 50 N. H., 420; Lake v. Milliken, 62 Me., 240; Bartlett v. B. G. L. Co., 117 Mass., 536; Johnson v. C., M. & St. P. R'y Co., 31 Minn., 57; Small v. C., R. I. & P. R. R. Co., 55 Iowa, 582; Burrows v. M. G. & C. Co., L. R. 5 Exch., 67; Oil City Gas Co. v. Robinson, 99 Pa. St., 1; Rylands v. Fletcher, L. R. 3 Eng. & Ir. App., 337; Child v. Hearn, L. R. 9 Exch., 183; Illidge v. Goodwin, 5 Car. & P., 190; Davis v. Garrett, 6 Bing., 716; Greenland v. Chaplin, 5 Exch., 247; Lynch v. Nurdin, 1 Q. B., 29; Griggs v. Fleckenstein, 14 Minn., 81; Pastene v. Adams, 49 Cal., 87; Lane v. Atlantic Works, 107 Mass., 104; Powell v. Deveney, 3 Cush., 300; Weick v. Lander, 75 Ill., 93; Del., L. & W. R. R. Co. v. Salmon, 39 N. J. Law, 309; The George and Richard, L. R. 3 Adm. & Ecc., 474; Collins v. Middle Level Comm’rs, L. R. 4 C. P., 279; Romney Marsh v. Trinity House, L. R. 5 Exch., 204; Binford v. Johnson, 22 Am. Law Reg., 50-56; Sneesby v. L. & Y. R’y Co., L. R. 9 Q. B., 266; Crandall v. Goodrich Tramp. Co., 16 Fed. Rep., 82; Stetler v. C. N. W. R’y Co., 46 Wis., 497; S. C., 49 Wis., 609, 622. The cases above cited also show that the alleged want of care on the part of the fire department of the city of Green Bay, or the negligence of such department at the time of the fire, or the fact that by reason of the dry weather'there was no water in the cisterns, are no defense to the plaintiffs’ action. Salsbury v. Herchenroder, 106 Mass., 458; Wharton on Neg., sec. 145.

Other exceptions were taken to instructions given to the jury on the question of negligence. It is claimed by the appellant that the court, in some of the instructions excepted to, assumed the functions of the jury by stating that the neglect of the defendant in not providing its boat with proper and adequate means for preventing the emission of sparks from the smoke-stack, would be negligence in law, instead of evidence of negligence. Usually the question of negligence is a question of fact for the jury and not of law for the court. The acts which can be declared negligence as a matter of law, should be such as to admit of but one reasonable answer. Whether running up the harbor of Green Bay with a steamer so equipped and managed as to emit a large quantity of sparks from the smoke-stack was negligence in law, would depend upon the attendant circumstances, the state of the weather, the direction and force of the wind, and the distance of the boat from the buildings upon the shores. We are inclined to think that the instruction quoted in the statement of the case, as excepted to, is subject to the criticism which the learned counsel for the appellant makes upon it. The facts stated in the instruction, standing alone, would hardly justify the court in instructing the jury that they might find the defendant guilty of negligence. The facts stated in the instruction, taken in connection with the other circumstances claimed by the plaintiff to have existed, would undoubtedly justify such instruction; but if the attendant circumstances were such as were claimed by the defendant, such instruction would not be justified.

On account of the errors above indicated the judgment of the circuit court must be reversed.

By the Court. — 'The judgment of the circuit court is reversed, and the cause remanded for a new trial.