Austin vs. Chicago, Milwaukee & St. Paul R. Co.

APPEAL from a judgment of the circuit court for Brown county: S. D. HASTINGS, JR., Circuit Judge. Affirmed.

Actio.. to recover damages alleged to have been caused to plaintiff by fire negligently set by defendant, August 3, 1893. Plaintiff's claim was that the negligence of defendant consisted in allowing to accumulate and remain on its right of way a large amount of dry, combustible material during a very dry season, by reason of which a fire was started in such material by sparks which fell from one of its locomotives, and from which such fire spread to the lands of plaintiff, causing the damage complained of. A special verdict was rendered, by which the jury found that the fire started on defendant's right of way; that it spread from there to plaintiff's premises, described in the complaint; that the fire caught from defendant's locomotive No. 38, which was properly constructed, was in good condition, and properly handled; that defendant failed to exercise ordinary care in keeping its right of way clear from combustible material where the fire started; that plaintiff and her husband and servants used ordinary care to prevent the spread of the fire, and that plaintiff was damaged in the sum of $1,225, $125 of which was caused on August 3, 1893, the day the fire was set, and $1,100 thereafter. A motion was made on exceptions to set aside the verdict and for a new trial, which motion was denied, and defendant appealed.

For the appellant there was a brief by Greene, Vroman & Fairchild, and oral argument by C. E. Vroman. They contended, inter alia, that upon the evidence the plaintiff's agents and servants were grossly negligent, as a matter of law, in failing to return to the fire on the morning of August 4th to prevent its spread and complete the work of extinguishing it, and in going away leaving no one but a fifteen-year-old boy to take charge of the place and to watch, fight, and prevent the further spread of the fire. Crandall v. Goodrich Transp. Co. 16 Fed. Rep. 75, 84; Ill. Cent. R. Co.

VOL. 93-32

Austin vs. Chicago, Milwaukee & St. Paul R. Co.

v. McClelland, 42 Ill. 355, 359; Toledo, P. & W. R. Co. v. Pindar, 53 id. 447; Kesee v. C. & N. W. R. Co. 30 Iowa, 78, 82; Stebbins v. C. V. R. Co. 54 Vt. 464; Ill. Cent. R. Co. v. McKay, 69 Miss. 139. Every person is bound to use diligence to save himself from injury by the negligent act of another. Bradley v. Denton, 3 Wis. 557; Poposkey v. Munkwitz, 68 id. 322, 331; 1 Suth. Dam. 148; Ross v. B. & W. R. Co. 6 Allen, 87; Murphy v. C. & N. W. R. Co. 45 Wis. 222,

238.

For the respondent there was a brief by Wigman & Martin, and oral argument by P. H. Martin.

MARSHALL, J. The evidence tended to show that those who had charge of the land for plaintiff, and defendant's servants as well, supposed, on the evening of August 3, 1893, that there was no further danger to be apprehended from the fire, and that such condition had not changed by the succeeding morning. Defendant's servants left the premises on the evening of August 3, 1893, and on the following morning the persons who had been guarding the premises for plaintiff went blueberrying, leaving a boy of fifteen years of age in charge. Thereafter the fire freshened up and caused the greater part of the damage complained of. The court, by the eighth and ninth questions of the special verdict, covered the subject of whether there was a want of ordinary care on the part of plaintiff after the morning of the 4th. The finding was in her favor, and it is alleged as error that the court did not, as requested, direct the jury to find on this branch of the case in defendant's favor. facts covered by the questions were material and important, for, if the fire was caused by want of ordinary care on the part of defendant, still it would not be liable to answer for any damages which the exercise of ordinary care on the part of plaintiff, or of those for whose conduct she was responsible, might have prevented. Mills v. C., M. & St. P. R. Co. 76

The

Austin vs. Chicago, Milwaukee & St. Paul R. Co.

Wis. 422; Gibbons v. W. V. R. Co. 62 Wis. 546. Without referring in detail to the evidence on the subject, suffice it to say that a careful examination of the record leads to the conclusion that the questions were properly submitted to the jury. There was evidence tending to show that there was no probable danger to be apprehended of further spread of fire as the situation appeared on the morning of August 4th. Such being the case, clearly the trial court was not warranted in deciding, as a matter of law, that there was want of ordinary care on the part of those for whose conduct plaintiff was responsible in that they left the premises at that time.

The appellant requested the submission of the following question: "Could it have been reasonably anticipated that the fire remaining on plaintiff's premises on the evening of August 3, 1893, would have spread further on said premises?" This was refused, and such refusal is assigned as error. If the question was directed to whether there was a breach of duty on the part of plaintiff, the refusal to submit it was not error, as that subject was fully covered by questions 8 and 9, above referred to. We assume that the question related solely to whether defendant's servants exercised ordinary care in leaving the premises on the evening of the 3d, and making no effort thereafter to control or put out the fire; and in that light it was immaterial. If actionable negligence on the part of defendant caused the fire which spread directly to plaintiff's land and caused the damage complained of, whether there was ordinary care exercised on its part or not to quench such fire does not affect plaintiff's right to re

cover.

The next and last error assigned is that the court erred in not setting aside the verdict and granting a new trial upon the ground that it was contrary to the evidence. Each question of the special verdict covered a controverted fact, upon which there was some evidence to be considered by

Peterson vs. Daniel Shaw Lumber Co.

the jury and to support their finding. It follows that we cannot say that there was an abuse of discretion on the part of the trial judge in refusing to set the verdict aside as contrary to the evidence, and to grant a new trial.

By the Court.-Judgment affirmed.

PETERSON, by guardian ad litem, Appellant, vs. DANIEL SHAW LUMBER COMPANY, Respondent.

May 22-June 19, 1896.

Change of venue: Prejudice of judge: Application, when to be made: Waiver.

1. An application for a change of venue on the ground of prejudice of the judge is not too late, though made after a struck jury has been summoned and is in attendance pursuant to ch. 268, Laws of 1889 (S. & B. Ann. Stats. secs. 2544s-2544y), if made before any further proceedings are had. Grobman v. Hahn, 59 Wis. 93, distinguished.

2. A stipulation, in such a case, that the action should be tried by the struck jury was not a waiver of the right to apply for a change of venue.

APPEAL from a judgment of the circuit court for Eau Claire county: W. F. BAILEY, Circuit Judge. Reversed.

For the appellant there was a brief by George M. Popham, attorney, and V. W. James, of counsel, and oral argument by C. T. Bundy. They argued that at the time of the filing of the affidavit of prejudice and motion for change of venue no proceedings had been taken by either party before the court and the trial had not in any sense begun. The application was therefore seasonably made. Eldred v. Becker, 60 Wis. 48. Ch. 268, Laws of 1889, under which the struck jury in question was attempted to be drawn, is borrowed verbatim from the statutes of Minnesota (Gen. Stats. Minn.

[Peterson vs. Daniel Shaw Lumber Co.

ch. 71); and had been construed in the particular under consideration by the supreme court of that state before its adoption by our legislature. O'Brien v. Minneapolis, 22 Minn. 378; Mark v. St. P., M. & M. R. Co. 32 id. 208.

For the respondent the cause was submitted on the brief of H. H. Hayden.

CASSODAY, C. J. This action is to recover damages for personal injuries to the plaintiff while in the employ of the defendant. The answer was served and issue joined March 8, 1895. The cause was noticed for trial and on the calendar for the term commencing March 18, 1895. June 14, 1895, the parties stipulated to the effect that the defendant might demand, within two days, and obtain a struck jury for the trial of the cause, as prescribed by statutes; that one day's notice therefor should be sufficient; that the action should be tried by the jury so obtained, the same as though all the provisions of law relating to the striking of such juries had been complied with. On the same day the defendant demanded of the clerk of the court that a struck jury be drawn as prescribed by statute, for the trial of the action. Laws of 1889, ch. 268 (S. & B. Ann. Stats. secs. 2544s-2544y). The clerk forthwith delivered a certified copy of such demand to the sheriff, who thereupon made a list of forty names, from which such struck jury was to be selected, and gave due notice to the attorneys of the respective parties of the time and place for striking such jury. Both parties attended accordingly, and each struck twelve names from the list. Thereupon the clerk issued a venire to the sheriff, requiring him to summon the sixteen persons whose names remained upon the list to appear before the judge of the court, at the court room in Eau Claire, June 24, 1895, at 10 A. M., to serve as jurors. The sixteen men so summoned attended as required, but owing to the absence of the presiding judge no proceedings were had on that day. June