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2. NEGLIGENCE ( 134*)-ACTIONS-EVIDENCE vention of fires along the highway upon which -SUFFICIENCY. the engine travels.

In an action against the operator of a traction engine for negligently firing plaintiff's barn, evidence held to support the findings of the jury that the spark arrester was insufficent in point of design; that defendant failed to exercise ordinary care in providing and using the spark arrester; that the failure to exercise ordinary care was the proximate cause of the injury; and that defendant's engine set the barn on fire.

[Ed. Note.-For other cases, see Negligence, Dec. Dig. § 134.*]

3. NEGLIGENCE (§ 125*)-ACTIONS-EVIDENCE -ADMISSIBILITY.

The frequency of fires ignited by an engine as it passed along the highway is evidence of improper management or construction.

[Ed. Note. For other cases, see Negligence, Cent. Dig. §§ 239-244; Dec. Dig. § 125.*] 4. EVIDENCE (§ 506*)-OPINION_EVIDENCE SUBJECT-MATTER OF OPINION EVIDENCE.

Opinion evidence may properly be given as to the very point the jury are to decide, where such point is within the field of expert testimony, and the opinions offered are based on undisputed facts, or assumed facts warranted by the record.

[Ed. Note.-For other cases, see Evidence, Cent. Dig. § 2309; Dec. Dig. § 506.*]

5. NEGLIGENCE (§ 124*)-ACTIONS-EVIDENCE -ADMISSIBILITY.

In an action for firing plaintiff's barn by the negligent operation of a traction engine, where it appeared that wood was burned, though the engine was equipped with a coal spark arrester, evidence of a comparison of the sparks emitted by wood or coal was competent on the issue of ordinary care in using wood as fuel.

[Ed. Note.-For other cases, see Negligence, Dec. Dig. § 124.*]

6. APPEAL AND ERROR (§ 1050*)-REVIEWHARMLESS ERROR.

In an action for firing plaintiff's barn by the negligent operation of a traction engine, where one of defendant's witnesses testified on cross-examination that all spark arresters have some open space, it was not prejudicial error to permit plaintiff to contradict that evidence. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4153-4160; Dec. Dig. § 1050.*]

7. NEGLIGENCE (§ 125*)—ACTIONS-EVIDENCE -ADMISSIBILITY.

In an action for firing plaintiff's barn by the negligent operation of a traction engine along the highway, evidence of fires caused by the engine upon its return trip on the same highway was admissible; the condition surrounding these fires being the same.

[Ed. Note.-For other cases, see Negligence, Cent. Dig. §§ 239-244; Dec. Dig. § 125.*] & NEGLIGENCE (§ 21*)-ACTS CONSTITUTING -MACHINERY-FIRES-TRACTION ENGINES. The owner and operator of a traction engine should use reasonable precaution to provide engines so constructed and equipped as to avoid the unnecessary communication of fire to premises adjoining the road on which it travels.

[Ed. Note.-For other cases, see Negligence, Cent. Dig. §§ 28-30; Dec. Dig. § 21.*]

9. NEGLIGENCE (§ 21*)-ACTS CONSTITUTING -MACHINERY-FIRES-TRACTION ENGINES. The owner and operator of a traction engine is not bound to provide the best and most approved appliance known to him for the pre

[Ed. Note. For other cases, see Negligence, Dec. Dig. § 21.*]

10. TRIAL (§ 296*)-INSTRUCTIONS-INSTRUCTIONS CURED BY OTHERS.

In an action against the operator of a traction engine for negligently firing plaintiff's barn, where the jury were instructed that for the prevention of fires the user of a traction engine should provide the best and most approved appliance known to him and in general practical use, and which under the circumstances it is reasonable to require the owner to adopt, and the court also stated that this rule does not mean that the owner of such engine is bound to adopt any particular kind of appliance for the prevention of fire, the error in the first part of the instruction was cured. [Ed. Note.-For other cases, see Trial, Cent. Dig. $$ 705-713; Dec. Dig. § 296.*] 11. NEGLIGENCE ( 125*) - ACTIONS - EVIDENCE SCOPE.

In an action against the operator of a traction engine for negligently firing plaintiff's barn, evidence that other fires had been caused by the engine was admissible, not only on the issue of the condition of the engine, but also on the issues whether the engine caused the fire in question, and whether the operator had notice of the insufficiency of the spark arrester.

[Ed. Note.-For other cases, see Negligence, Cent. Dig. §§ 239-244; Dec. Dig. § 125.*]

Appeal from Circuit Court, Marathon County; James O'Neil, Judge.

Action by George S. Cook and another against Doud Sons & Co. From a judgment for plaintiffs, defendant appeals. Affirmed.

This action was brought to recover damages for the destruction of plaintiff's barn and other property by fire, alleged to have been caused by the emission of sparks from a traction engine while being operated by defendant on the highway near plaintiff's premises. At the close of plaintiff's case motion for nonsuit was denied, and at the close of all the evidence motion to direct verdict for defendant was denied.

The jury returned the following special verdict:

"Question No. 1. Was the fire which burned plaintiff's barn and other property caused by sparks or cinders of fire emitted from defendant's traction engine? Answer: Yes.

"Question No. 2. Was said traction engine properly equipped with a spark arrester reasonably sufficient to prevent the escape of sparks and cinders? Answer: No.

"Question No. 3. Did the defendant fail to exercise ordinary care in providing and using the spark arrester in use at the time plaintiff's property was burned? Answer: Yes.

"Question No. 4. If you answer question No. 3, 'Yes,' then was such failure to exercise ordinary care the proximate cause of plaintiff's damage? Answer: Yes.

"Question No. 5. What was the value of plaintiff's barn and shed addition at the time it was burned? Answer: $657.75. "Question No. 6. What was the value of

plaintiff's hay at the time it was burned? | operated the engine by burning coal, instead Answer: $400.

"Question No. 7. What was the value of the remainder of plaintiff's property that was burned at the time it was burned? Answer: $150."

The usual motions after verdict were made and denied, and judgment entered for the plaintiff, from which judgment this appeal was taken.

P. A. Williams (B. R. Goggins, of counsel), for appellant. Kreutzer, Bird, Rosenberry & Okoneski and E. C. Pors, for respondents.

KERWIN, J. (after stating the facts as above). It is argued that the plaintiff failed to make out a case against the defendant, and therefore judgment should have been ordered for the defendant. It is strenuously insisted by the learned counsel for appellant that there is a fatal variance be tween the allegations of the complaint and the evidence adduced; and, further, that the evidence is not sufficient to support the findings of the jury.

[1] The complaint charges that on the 27th of August, 1909, the defendant caused to be run on the highway by the premises in question a load of cars drawn by a traction engine which did not have upon it any sufficient or proper spark arrester, but instead was equipped with an old, defective screen, full of large holes, which had been from time to time partially but inefficiently and ineffectually repaired, as a result of which the engine, when running continually, emitted large and dangerous sparks; that there was not upon the smokebox any sufficient or adequate screen, but instead a temporary makeshift screen placed there, which was entirely ineffectual to prevent large quantities of coals, cinders, and sparks from escaping therefrom. Further on the complaint alleges: "On said 27th day of August, 1909, the said engine, while passing the plaintiff Cook's premises, and because of the failure to properly equip the same with spark arrester and smokebox screen, and because of the negligent use of wood at said time, when coal could as well have been used, emitted large quantities of sparks, cinders, and coals which were carried to the premises of this plaintiff (Cook), thereby setting fire to the same and totally consuming all of the property above described, and causing to the plaintiff damage to an amount exceeding the value thereof."

The complaint also alleges that "the defendant could at very small cost have placed upon said engine a sufficient spark arrester and screen on the smokebox, which would have practically prevented the escape of sparks, cinders, and coals therefrom, but the defendant negligently and carelessly for a long time prior to said time omitted so to do." There is also a separate allegation to

of wood, which would have greatly decreased the danger of setting fire along the road, but that defendant operated the engine by burning wood, thereby greatly increasing the hazard of setting fire to adjoining property.

The attack made upon the complaint by counsel for appellant is that it charges negligence in wear and failure to repair, and burning wood, instead of coal, while the defect proved was negligence in design of the arrester, in consequence of which the arat the top, through which the sparks escaprester, as constructed, had a large opening ed, and therefore was not a safe or proper arrester when wood was used for fuel; that it was not sufficient in point of design. The evidence shows that the arrester was in perfect shape as originally constructed. But it appears that it was constructed with a funnel so placed inside of the arrester as to leave an opening above the funnel, so that sparks in ascending could escape from the arrester, and did escape when wood was used for fuel, as was the case at the time of the fire in question.

The court below held, upon objection seasonably made, that the complaint was sufficient to admit evidence to the effect that the spark arrester was not sufficient in point of design. We are inclined to the opinion that the court was in error in its ruling in this regard, but we cannot say that the defendant was prejudiced thereby. While the complaint did not charge insufficiency in point of original construction or design, it did charge negligence in using a spark arrester which emitted sparks through openings in the arrester. The arrester was in the possession of the defendant, and its condition obviously was well known to it. And it must have known that the opening which allowed the sparks to escape was not made by wear, hard usage, or failure to repair, but by design in the construction. After objection to the evidence respecting insufficiency in design was overruled, the defendant proceeded with the trial to verdict without making any showing of surprise. The rule is well settled in this state, under our statutes and the decisions of this court, that such error must be disregarded, unless the complaining party is prejudiced by it. The appellant failed below and fails here to show that he was misled by the error.

Section 2669, Stats. 1898, provides that no variance between the allegations in a pleading and the proof shall be deemed material, unless it shall actually mislead the adverse party to his prejudice; and whenever a party claims that he has been misled that fact must be proved to the satisfaction of the court, and in what respect he has been misled, and thereupon the court may order the pleading amended upon such terms as may be just. Also section 3072m, Stats. 1898, as added by Laws 1909, c. 192, provides, among

There was a high wind blowing to

versed, set aside, or new trial granted, in any | fire. action or proceeding, on the ground of error wards the barn from the highway where the as to matter of pleading or procedure, unless in the opinion of the court it shall appear that the error complained of has affected the substantial rights of the party seeking to reverse or set aside the judgment, or to secure a new trial. We cannot say that the error was prejudicial to the appellant, or affected his substantial rights.

[2] It is further insisted by appellant that the evidence is insufficient to support the findings of the jury on the following points, viz.: That the spark arrester was insufficient in point of design; that the defendant failed to exercise ordinary care in providing and using the spark arrester, or that the failure to exercise ordinary care was the proximate cause of the damage; that the defendant's engine set the barn fire.

We are unable to adopt the views of counsel for appellant that the findings are not supported by the evidence.

The spark arrester was put in evidence below, and is before us in this court. It shows that in construction a large opening was left between the screen and top of the funnel. There is abundance of evidence that this engine, so equipped and burning wood, was usually setting fires by means of sparks emitted when the weather was very dry. Some of the fires were set 40 or 50 feet from the road where the engine traveled; one about 5 rods, and one from 150 to 200 feet, from the road. There is also evidence that such a spark arrester, with such an opening as the one in suit, was not a suitable contrivance where wood was used for fuel, but that the arrester should be screened all over. There is also evidence that the engine was made for use of either wood or coal. One witness testified that the spark arrester was a coal arrester, because an opening is required for coal, and is not proper for wood.

[3] Counsel argue that all engines emit some sparks. This may be conceded. But the spark arrester must be reasonably safe and capable of doing what a good and sufficient device would be capable of doing under such circumstances, and so the jury were required to find whether the spark arrester was reasonably sufficient to prevent the escape of sparks and cinders. The frequency of fires set by the engine as it passed along the highway is evidence of insufficiency or improper management. Stacy v. Railway Company, 85 Wis. 225, 54 N. W. 779.

The evidence is also ample to support the finding that the defendant failed to exercise ordinary care in providing and using the spark arrester in use at the time plaintiff's property was burned. The weather was very dry, and great abundance of highly combustible material along the highway and in the adjoining field. The roof of the burned barn before the fire was covered with dust and chaff accumulated there by the threshing,

engine was traveling. The jury under the evidence were entitled to consider whether the engine was designed for wood, and all the other evidence in the case, and were justified in answering the question as they did. Martin v. Bishop, 59 Wis. 417, 18 N. W. 337; Kellogg v. Railway Co., 26 Wis. 223, 7 Am. Rep. 69; Read v. Morse, 34 Wis. 315; C. & A. Ry. Co. v. Quaintance, 58 Ill. 389; Glanz v. Railway Co., 119 Iowa, 611, 93 N. W. 575.

The evidence is also sufficient to support the finding that the engine set the fire which destroyed the property of the plaintiff. The barn was, according to some evidence, about 187 feet from the highway. About two or three minutes after the engine passed, a fire was discovered on the roof of the barn. There was no other fire about, or apparent cause for the fire on the barn. There was a strong wind towards the barn from the point where the engine passed. The position of the fire on the roof when it first started would indicate that it started from a spark dropped there. All the circumstances disclosed by the evidence tended strongly to show that the fire was set by the defendant's engine, and the jury were well warranted in drawing such inference. Theresa Ins. Co. v. Wis. Cent. Ry. Co., 144 Wis. 321, 128 N. W. 103. In Abbot v. Gore, 74 Wis. 509, 43 N. W. 365, this court said: "The fact that the engine passed shortly before the fire was discovered is some evidence tending to show that the engine did set the fire, notwithstanding it was in good order and properly managed." Nor have we any doubt but that the jury were entitled to find that the failure on the part of the defendant to exercise ordinary care was the proximate cause of the plaintiff's damage.

Error is also assigned upon the admission of evidence. The evidence respecting the sufficiency of the arrester in design has already been considered.

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[4] It is also insisted that error was committed in permitting witnesses to express the opinion that the spark arrester was insufficient when hardwood slabs and edgings were used for fuel, and that the engine threw more sparks than it should. Objection was made to this evidence on the grounds: (1) That no foundation was laid for it in the complaint; (2) that the witnesswere not competent; and (3) that the question was for the jury. As to the first point, sufficient has been said heretofore under the head of variance between the pleadings and the proof. We think the evidence was ample to qualify the witnesses to testify as experts as against objection to their competency, if such objection had been made. Respecting the objection to the evidence that the engine "threw more sparks than it should," the witness did not answer

the question, "Why she threw sparks." This | In so far as this instruction states that the answer of the witness did not cover an is- owner and user "should provide the best sue submitted to the jury by the special verdict. But opinion evidence may be given on the very point the jury is to decide, when confined to cases when such point is clearly within the field of expert evidence, and the opinions offered are based on undisputed facts, or assumed facts warranted by the record. Maitland v. Gilbert P. Co., 97 Wis. 476, 72 N. W. 1124, 65 Am. St. Rep. 137; Hamann v. Mil. Bridge Co., 127 Wis. 550, 106 N. W. 1081; Innes v. Milwaukee, 103 Wis. 582, 79 N. W. 783.

[5, 6] It is insisted that error prejudicial was committed in allowing comparison between wood and coal as to sparks emitted. This evidence was competent on the point as to whether, at the time and under the conditions disclosed by the evidence, it was exercise of ordinary care to use wood in the engine with an open spark arrester. One of defendant's witnesses, on cross-examination, testified that all spark arresters have some open space. It is claimed that it was error to admit evidence offered by plaintiff tending to rebut this. We find no prejudicial error in this regard.

[7] It is also claimed that evidence of fires on return trips, when the engine was not loaded, was error, and Menominee Co. v. Mil. R. Co., 91 Wis. 447, 65 N. W. 176, is relied upon. But in that case the ruling was that evidence of fires several months earlier by the same engine was incompetent when, after them and before the fire in question, the engine had been thoroughly overhauled and put in proper condition. In the case at bar, there is evidence of emission of sparks and fire on return trips, and when the engine was not loaded, and under conditions similar to those existing when the fire in question was set.

[8] Error is assigned upon the charge in refusal to charge as requested. Under exceptions, designated as exceptions 2 to 6, referring to question 2 of the verdict, the court instructed in respect to the care imposed by law upon one using a traction engine. Under the foregoing head the following part of the charge is excepted to: "As a general rule, it may be said that the owner and operator of a traction engine should use reasonable precaution to provide engines so constructed and equipped as to avoid the unnecessary communication of fire to premises adjoining the road on which it travels." We discover no error in the foregoing.

[9, 10] Perhaps the most objectionable part of the charge under this head is covered by exception 5, which reads: "Such owner and user of a traction engine should provide the best and most approved appliance known to him and in general practical use, and which, under the circumstances, is reasonable to

and most approved appliance known to him," it is objectionable and erroneous, as requiring too high a degree of care. But the latter part of the instruction qualifies the former, and required the defendant to provide only such engine as is "in general practical use, and which, under the circumstances, it is reasonable to require the owner of such engine to adopt." The court further qualified this instruction by stating: "This rule does not mean, however, that the owner of the engine is bound to adopt any particular kind of an appliance for the prevention of fire, and, if the kind it has adopted has been approved and in general use, it is not guilty of negligence for failing to adopt appliances of a different kind." We think the objectionable words were so effectually qualified in the charge that the jury could not have been misled by them, and therefore no prejudicial error was committed. Read v. Morse, 34 Wis. 315; Spaulding v. Ry. Co., 30 Wis. 110, 11 Am. Rep. 550.

Exception is taken to portions of the charge respecting the emission of sparks under certain conditions, and the presumption arising therefrom, and whether the engine was equipped with a spark arrester reasonably sufficient to prevent the escape of sparks and cinders. In this connection, the court charged the jury: "It is proper for the court to further instruct you that the evidence shows, and the law recognizes, the fact that all locomotives and traction engines are liable to throw out sparks which will set fire in a dry time. It is a truth, tested by common experience, that by no means which the ingenuity or cunning of man has yet been able to devise or discover can the escape of sparks and coals of fire be entirely prevented. So the jury will not.decide that this spark arrester is insufficient, merely because sparks and cinders escaped and set fires."

[11] Error is assigned on refusal to give the following instruction: "I instruct you, gentlemen of the jury, that the evidence of other and former fires set by the engine in question, if you should find that such fires were by it so set, was received solely as bearing upon the condition and reasonable sufficiency of the engine at the time of the occurrence of such fires, and at the time of the Cook fire, and cannot by you be considered as evidence that said engine in fact set the Cook fire." This request was properly refused. The evidence in the record was not received solely on the issue of condition of the engine, but was received generally, and had a bearing on the issues as to whether the engine set the fire in question, and notice as to the sufficiency of the spark arrester. 1 Wigmore on Ev. § 452; Spauld

550; Brusberg v. Railway Co., 55 Wis. 106, | court, and in the absence of assignment of er12 N. W. 416.

We find no reversible error in the record.
The judgment is affirmed.

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In an action against a lighting company for death of a child, who fell into an unguarded excavation in a street, held, under the evidence, that the questions whether the company was negligent or the child guilty of contributory negligence were for the jury.

[Ed. Note.-For other cases, see Municipal Corporations, Dec. Dig. § 821.*]

2. NEGLIGENCE (§ 85*) — APPRECIATION OF DANGER-APPLICABILITY OF DOCTRINE

CHILDREN.

Appreciation of known danger as an element of contributory negligence is not limited to the relation of master and servant, but applies to the issue whether a child used ordinary care for its own safety.

[Ed. Note. For other cases, see Negligence, Cent. Dig. §§ 121-129; Dec. Dig. § 85.*] 3. TRIAL (§ 244*)-INSTRUCTIONS REFERENCE TO EVIDENCE.

In instructing, a trial court may properly refer to features of the evidence, making no attempt to give particular prominence to any part, so as to suggest the weight that should be given thereto.

[Ed. Note.-For other cases, see Trial, Cent. Dig. $$ 577-581; Dec. Dig. § 244.*] 4. APPEAL AND ERROR (§ 216*)-OBJECTION

BELOW-INSTRUCTIONS.

Inadvertent omission by the trial judge of any particular material feature in instructing concerning the evidence is not assignable as error, unless his attention is seasonably called

thereto.

ror.

Error, Cent. Dig. §§ 1353-1368; Dec. Dig. §

[Ed. Note.-For other cases, see Appeal and

221.*1

Appeal from Circuit Court, Oneida County; A. H. Reid, Judge.

Action by Clarence J. Secard, as administrator of Beatrice Secard, deceased, against the Rhinelander Lighting Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Action for damages caused by the alleged taking of the intestate's life.

The pleadings presented the question of whether defendant was legally liable for the intestate's death. The evidence proved, the course of its permissible operations as or tended to prove, this: The defendant, in a public utility corporation, made several excavations in a street of the city of Rhinelander, about 5 feet deep, 20 inches in diameter at the top, and somewhat less at the bottom. The work was finished about the middle of the afternoon of the day of the accident. The intention, for a time, was to equip the excavations with poles during the afternoon and completely close them. The employé who did the excavating soon thereafter went away for an hour or so, leaving the holes wholly unguarded. Finally, it was determined not to close them up until the following day. Thereupon employés went thereto for the purpose of putting covering thereon. In the meantime the accident occurred. The particular hole was about 2 feet from the sidewalk. The street was considerably used. Children were liable to pass along, in either direction, and, attracted by the hole, approach near to and play around the brink. The earth at the surface was hard, but from a little below the ground was of a nature liable to cave as must have been observable to the persons who did the digging. He, however, in walking around the edge of the particular hole when doing the work did not start any caving, so far as observed. The deceased, a child between 9 and 10 years of age and reasonably intelligent for one of her years, and her sister, who was 11 years of age, about 5 o'clock P. m. went from their home to the vicinity of the hole. Two other girls, one 13 years of age, accompanied them. They met at the The deceased and older particular place. girl crossed the street to another hole and looked in. The sister of deceased thereupon admonished them to come away, saying, at the same time, there was danger of their falling in. They turned back, went to the particular place and deceased jumped across it. She then walked partly around the hole and stood in an attitude of preparing to Any error of the trial court in compelling jump again. The two older girls then called defendant to submit to a reduced verdict at plaintiff's election is not reviewable, in the to her to step away from the hole as there absence of steps for review taken in the lower was danger of falling in. She replied that if *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

[Ed. Note.--For other cases, see Appeal and Error. Dec. Dig. § 216; Trial, Cent. Dig. 88 627-641.]

5. DEATH (§ 84*) - DAMAGES - ELEMENTS FUNERAL EXPENSES.

In a suit for negligent death of a child, brought for the benefit of the father, funeral expenses paid are recoverable.

[Ed. Note. For other cases, see Death, Cent. Dig. 110; Dec. Dig. § 84.*]

6. Appeal and ERROR (§ 1140*)-AFFIRMANCE -COMPELLING REMISSION.

In cutting down a verdict as excessive, and compelling defendant to submit to the reduced amount at plaintiff's election, care should be used not to invade the constitutional right of jury trial; and this can be well accomplished by fixing the amount, on acceptance of which the case will be affirmed at the minimum which a jury could reasonably be expected to give on the evidence.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 88 4462-4478; Dec. Dig. g 1140.*]

7. APPEAL AND ERROR (§ 221*)-REVIEW RESERVATION OF GROUNDS.

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