GOODRICH 'rRA-NSP. CO.
unless the guest should have given'him' written notice of having such merchandise' for sale or sample in his possession after entering the inn, unless the loss totha guest was caused by the theft of the innkeeper or his servants; and inasmuch as the evidence here shows that these goods were kept in the hotel for sale or sample, and there is no evidence tending to show that there was any such written notice as the statute requires, and no evidence tending to show that the theft was caused by the innkeeper or his servants, it follows that you must return a verdict for the defendant, and this you can do without leaving your seats.
and others v.
(Uircuit Oou,.t, E. D. Wi8conlin. March, 1883.)
1. PARTIEs-A.CTION FOR NEGLIGENT BURNING OF HOUSE-OWNER AND 1N8trRJilR8 A8 JOINT PLA.INTIFF8. In an action to recover the value of a building destroyed by a fire caus.ed by the alleged negligence of defendant, the owner of the building and an Insurance company that has paid the amount of insurance on such building and taken an assignment of the claim from the owner to extent, may join as parties to the action when the value of the house exceeds the amount for which it was insured. 2. NEGJ,TGENCE-DEFINITION OF. Negligence is the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. It must he determined in all cases by reference to the situation and . ItnowledJ!e of the parties under all the attendant circumstances. a. SAllE-BURDEN OF PROOF. In an action for negligence the presumption is that due CIlre was exercised, and the burden of proof is upon the plaintUf to show by a preponderance I)f credible evidence that the nefcndant has been guilty of negligence. .He must satisfy the jury that defendant by some act or omission violated some duty, and that such violation caused the injury 'complained of. 4. SAME-FIRE CAUSED BY DEFENDANT's NEGLIGENCE-NEGLIGENCE OF OWNER -Loss OF ADJOINING HouSE. ' Where a building has been set on tire by rellson of the negligence of defendant, and the tire has extended to and destroyed a house belonging to plaintiff near by, negligence on the part of 'the owner of the building tirst burned will not of itself relieve the defendant from liability for negligence; for where an injury is the result of two concurring causes, the party responsible for one of these causes is not exempt from liability because the perdon who is responsible for the other cause may be equally culpable. 5. SAME-PROXIMATE CAUSE. Where a planing-mill is set on tire by sparks from a st.PlImer which escaped because of the negligence of the oWner of the boat, or'tJ!ooSc in charge of 1
and such fire extends to plaintiff's house, and the burning of such house is a result naturally and reasonably to be expected from the burning of the mill under the circumstances, and is the result of the continucd effect of the sparks from the steamer, without the aid of other causes not reasonably to be expe,cted, the negligence of the defendant willlJe considered as the proximate Cil-USC of the burning of plaintiff's house.
SAME-CONTRIBUTORY NEGII,GENCE-QUESTION FOR .JURY.
Where the negligence of plaintiff contributes proximately to an InJury alleged to have been caused by the negligence of defendant ho cannot recover; but the question as to Whether plaintiff exercised, under all the attendant circumstances, the ordinaq care that a reasonable man would under like circum3tances exercise, is for the jury to determine from all the evidence in the case.
At Law. Cameron, Losey cf: Bunn, Robert Rae, and C. E. V1'oman, for plaintiffs, W. 1. Crandall and Phamix. Insurance Co. E. H. Ellis, Hastings cf: G1'eene, Jas. G. Jenkins, and H. M. Finch, for defendant, the Goodrich TranspoHation 'Co. DYER, J., (charging jU1'y.) His alleged by the plaintiffs that on the twentieth day of September, 1880, the steamer Oconto, a boat helonging to the defendant company, was navigating the waters of Fox river within the limits of the city of Green Bay; that in consequence Of the negligence of the defendant, and of those in charge of the boat at the time, sparks escaped from the chimney of the steamer to the shore, and there set a fire which destroyed a certain dwellinghouse then owned by the plail1tiff Crandall; and this suit is brought totecover the value of the building thus destroyed. It appears that at the time of the fire there was insurance upon the house to the extent of $4,000, the plaintiff insmance company having previously issued to the owner a policy of insurance for that sum. After the fire the insurance company paid to the owner the amount of such i'nsurance, .and thereupon the plaintiff Crandall transferred to the company his claim against the defendant, to the extent of $4,000, by virtue of which transfer the insurance company became subrogated to the rights of the owner to the extent of the amount of the insurance. It is admitted that the value of the was $5;846.81, and as this value exceeds the amount of the insurance, the owner of the building and the insurance company join as plaintiffs in this suit, as they may rightfully do. . There ill not, as the court understands, any dispute about the fact that the fire in question began in the planing-mill or on the planingmill dock, so often spoken of in the testimol1Y; and it is claimed by the plaintiffs thlj,t the fire was set ,by sparks escaping from the steamer
CRANDAt.L V. GOODRICH TRANSP. 00.
while she was passing up Fox river, and as she was approaching the draw of Mason-street bridge; that the fire extended from the planingmill in a north-easterly direction, and in its course consumed the , house of the plaintiff Crandall, which, according to the testimony of one of the witnesses, was situated betw6en 850 and 900 feet from the planing-mill. The first question, therefore, to be determined by you is, did the fire which burned the planing-mill or planing-mill dock originate from sparks escaping from the steamer? I say the first question, because if you should find that the fire at the planing-mill was not caused by sparks from the steamer, that is an end of the case, and your verdict in that event should be for the defendant. But if your conclusion shonld be that the burning of the planing-mill was caused by sparks from the steamer,then other questions arise for your consideration, which will be submitted to you by the. court. ('rhe court then stated the claiins of the parties and called tion to the testimony on the question of the origin of the fire, which part of the charge it is unnecessary to insert here.) The jury were then instructed as follows: As I have before stated, if you find that the planing-mill fire was not set by sparks from the steamer, you need proceed no further in the case. But if you find that the fire was caused by sparks tha-t escaped from the boat; you will then proceed to inquire and determine whether, in the equipment of the steamer, in her management, and in the control exercised over her on that day, proper precautions werfl taken by the owners of the boat, or those in charge of her, to avoi& doing injury to others; in other words, whether the fire was occasioned by negligence on their part. To maintain this action it is'essential that, in some one or more of the particulars alleged, negligence be shown. The foundation of the' plaintiffs' claim is that the 'fire was caused by want of proper care on the part of thEi defendant· and its employes in charge of the steamer at the time, and unless sudli want of care is established by the evidence there can be no recoverYi As is stated in one of the instructions which I am asked you, the gist of the action is the negligence of the defendant that be established, the defendant is not liable. Thepresumptioll" ia that due care was exercised, and the burden of proof is upon' tM plaintiffs to show by a preponderance of credible' evidence that tIle defendant has been guilty of negligence. It is incumbent upon' them to satisfy you that the defendant, by its act ot omission, vio-
lated E!ome duty imposed upon it, alJ.d that such violation caused the injury complained of. Negligence is claimed in three particulars. It is said-First, that on the day in question an unusually violent wind was blowing, and that its course was such as to carry eSGaping sparks and cinders from the steamer directly towards and npon the city of Green Bay; that a drought had prevailed and that it was then uncommonly dry; that the east shore of the river was lined with wooden buildings and docks, upon which there was combustible material; that the officers of the boat knew the topography and condition of the shore, and that in view of the alleged force and direction of the wind, the state of the weather, and all the circumstances existing at the time, it was negligence on the part of the officers of the boat to proceed up the river toward those in charge of the .Depere; and it is claimed that in so steamer were guilty of great carelessness. Secondly, it is said that the. boat was not prudently and carefully operated, and that this alleged want care consisted in using her steam exhaust inside her chimney, thereby increasing the draft through the chimney, which it is claimed would have a tendency to cause a much greater emission of sparks than would take place if the exhaust was outside the chimney, or than would occur if there was what is called a natural draft through the chimney. Thirdly, it is claimed that it was negligence not to have a spark-arrester in or upon the smoke-stack of steamer. The.se are the three principal allegations of negligence made by the plaintiffs, and each one of them controverted by the defendant. Ip. considering whether the was or was not. negligent, the test which the law applies, and which you should apply,is, what would an ordinarily-careful and prudent person have done with reference to the employment of the 'boatin navigation at that place, on that day, and with reference to her management and the use of a spark-arrester, under the precise circumstances then Negli.gence is the omission to do something which a reasonable man, guided by those cOll:siderations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. It must be determined, in all cases, by reference to the situation and knowledge of the parties, and all the attendant circumstances. The law does not charge culpable negligence upon any one who takes the usual precautions against accident which careful and prudent men are accustomed to take under
v. GOODRIOH TBANSP. CO.
similar Clrcnmstances. Parrott v. Wells, 15 Wall. 524. In short, the defendant and those in charge of the steamer were bound to ex· ercise reasonable care in operating and managing her, and b.y that is meant such care as a person of ordinary prudenoe would be expected to exeroise in the oircumstances existing at that time and plaoe. As before stated, in connection with the question first submitted to you, there is a controversy between the parties as to the direction and force of the wind when the steamer passed up the river and through the draw of Mason-street bridge. It is claimed by the defendant that it was not hazardous to property on shore, or imprudent for the boat to leave her landing and proceed on her voyage to Depere; that it was the right of the vessel to navigate the river at that time and place; that she was prudently 'and properly managed; that her steam exhaust was outside the chimney; that she was equipped as the law requires; was provided with all safe and neoessary appliances to prevent the escape of sparks; and that the use of! suoh a spark-arrester as the plaintiffs' insist should have been attachedto her chimney was riot necessary or practicable, nor required by the circumstances of, the situation. In determining whether it was prudent and proper for the steamer to leave her landing and proceed up the river, and, whether she was; operated with due care, you will consider all the evidence on the subject, and also the entire situation-the direction and force of the wind, the material of which the planing-mill and dock were constructed, the condition of the dock with reference to combustible material thereon, the distauce that the steamer,was from the planingmill; whether the master of the steamer knew the character and condition of the buildings and docks along the river on the Green Bay side, including the planing-mill and its dock; whether, inapproaching and entering the draw of Mason-street bridge, the fire in the furnace of the boat was increased so as to make escaping sparks unusually dangerous; whether there was a prudent use oIthe,power of the engine in the existing circumstances; whether the ste,am eX:haust was inside or outside the chimneYI which is a con.troverted, question of fact, and one that you must settle upon thetestimony.;1 whether, in sllort, as I have before said, such care and prudencewerd exercised in controlling the movements of the boat as persons wonld have exercised in like circnmst,ances. Concerning the use of a spark-arrester in the chimney of, th6" steamer, the defundants' take the position that ifthavessel was provided with the equipment, In:1clJinery, an] mechanical appliances
required by the act of oongress regulating steam-vessels, this was sufficient, and that negligence is not imputable to the defendant because of the absence of a spark-arrester in the chimney of the steamer. I have given this question consideration aud have concluded that the court ought not to itlstruct you, as matter of law that the owners of the boat were not bound to use a spark-arrester in or upon the chimney of the boat, but that it should be left to you to say upon the evidence whether or not the defendant was guilty of negligence in that respect. And here, again, the test is, what would an ordinarily careful and prudent man, owning such a boat as this, have done in to having an appliance in or upon her chimney to prevent the escape of sparks? Much testimony has been introduced relative to the use and the practicability of using a spark-arrester on the Oconto and on steamers of her class. It is claimed by the plaintiffs that such a sparkarrester as has been described to you would have prevented the escape of sparks from this steamer, and would therefore have preveilted the fire; that it is a device in use on many of the lake boats; that it could have been efficiently employed on the Oconto; and that prudence and a due regard for the safety of property on shore required its use on the occasion in question. On the other hand, it is said that the use of such a device is not cousistent with the safety of the boat; that by getting clogged it operates like a damper, and tends to obstruct the draft thronghthe the chimney, and thus to interfere with the motive power of the boat; that when in condition for use it does not prevent the escape of sparks; that it has been found impracticable to use it; that the lawapplicable to steam-vessels does not require its US6, and therefore, in view of these various c<.nsiderations and others that have been suggested, the defendant was not bound to ha.ve such an appliance on this steamer. Now, it is for you to say what was the duty of the defendant in this respect. What would an ordinarily-prudent man, who owned a boat like this, have done in regard to using a spark-arrester? In answering this question, you will take into account the manner in which the steamer was equipped with reference to her machinery and all her mechanical apparatus. If her equipment in that respect was such as the law requires, you may take that into consideration; you will consider whether this appliance in question has been found to be genitally used by prudent and careful men in the management of vesseb and steam-power; what is the general usage, what have been
CRANDALL 'V. GOODRIuB TRANSP. CO.
the experiments made, and what are the opinions and experience of those who have used spark-arresters on boats; consider the situation and surroundings of the steamer at the time when it is alleged the fire was set; whether a spark-arrester would have operated efficiently to prevent the escape of sparks; whether its use would have in any degree endangered the safety of the boat itself; you will consider what appliances the boat had for controlling or regulating the escape of sparks; to what extent, if at all, the outside exhaust diminishes, and the inside 'exhaust incraases, the quantity of sparks produced, and their escape through the chimney; and in the light of all the circumstances, you will say whether there was any duty imposed on the defendant to have a spark-arrester on this steamer at the time of the fire complained of occurred. Kellogg v. Milwaukee ft St. P. Ry. Co. 5 Dill. 548. ' Upon this general question of negligence I need only add, III substantially the language of Mr. Justice MILLER, in the case of Kellogg v. Milwaukee r1: St. P. Ry. 00., supra, that with the elements of transportation used in commercial t,ransactions, and with the great bulk of material transported to and from different parts of the country, the use of steam-power has become not only necessary, but indispensable to the interests of the whole country, and you may properly consider how far the interests of the public require those using this great power to be restricted, and how far the good of the people require those making use of it to adopt means of safety and protection. Steam and fire are dangerous eleme'nts, but they must be used. The defendant and its employes had a right to employ the steamer Oconto in navigating the waters of Fox river, but they were required to exercise such care and prudence as I have before stated to you; and tha question is, was there anything in the circumstances and situationat the time in question to put those exercising control over the boat, on their_guard? Did they exercise due care and prudence, such as an ordinarily-prudent person would have exercised? This is the gist of your inquiry. If your conclusion shall be that the pla:ning·mill fire was set by sparks from the steamer, but that it was not the l'esult of any negligence on the part of the defend,mt or· those in charge of the boat, then the plaintiff caunot recover, and the case would necessarily stop at that point. But if you find that the fire originated from sparks from the Oconto, and that it was caused by negligence on the part of v.16,no.1-6