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chilled, owing to the cold and damp Condition of the atmosphere in the car; that the condition of the atmosphere was such as to render it dangerous for healthy persons to sleep in it, protected as passengers were in their berths. But they further found that a man of ordinary intelligence and prudence, in charge of the car as the porter was, ought not reasonably to have anticipated that such cold and damp condition of the atmosphere would injure the health of a healthy person sleeping in his berth. There is nothing inconsistent in these findings. They found that a dangerous condition of the atmosphere did in fact exist, but that defendant had no reason to anticipate or know that it was dangerous. To sustain liability it is not enough to show that defendant permitted a dangerous condition to exist. It must also be shown that it was negligently permitted to exist. If defendant had no reason to anticipate any injury to any healthy person by reason of the atmospheric condition maintained, it was not negligent. Green v. Ashland Water Co., 101 Wis. 258, 77 N. W. 722, 43 L. R. A. 117, 70 Am. St. Rep. 911. The verdict returned by the jury, therefore, entitled the defendant to a dismissal of the action upon the merits. [2] Was the trial court warranted in changing the answers to questions 2, 3, and 4 from “Yes” to “No”? As to question 2, it is sufficient to say that the utmost plaintiff can claim from any testimony in the case, including that of his own medical experts, is that the atmospheric condition in the car was such that it might produce pneumonia. None of the experts testified that plaintiff's pneumonia was, in their opinion, caused by such condition; or that it was reasonably certain that such condition would probably produce pneumonia. Moreover, the consensus of all the medical testimony, and of common observation and experience, is that it would require more than three or four hours from the first exposure to fully develop a pneumonic chill, such as the plaintiff had when he awoke the second time. The reasons for changing the answer to this question will appear more fully in the discussion relative to questions 3 and 4. These two questions can be treated together. Plaintiff, at the time of the alleged exposure, was 42 years of age, in good health, and weighed about 150 pounds. He claims that he felt first-rate when he entered the car at Minneapolis; that he noticed nothing unusual about the temperature of the car at the time he entered; that he rode for a while in the smoking compartment with the window open, but was not subjected to any draft, and did not feel uncomfortable. About 9:30 in the evening he retired, and went to sleep about 10 o'clock. Later he was awakened by a noise like that of a

the engine was cut off. He said the Car seemed cold, but he called for no additional cover. On cross-examination, he testified the car was comfortable when he awoke, and later, on direct examination, he testified that he then felt all right; that he went to sleep almost immediately; that he thought he slept about an hour or two, but could not tell just how long; that he then Woke up with a chill; that it was the chill that woke him up. He was so cold that he shook, and the car seemed cold to him. He asked the porter for heat, and was told the engine was disconnected, and that no more heat could be given him just then. He had a high fever and a headache. He was conscious that some time later the engine came back and coupled onto the train. He said it seemed to him quite a while afterwards. But the uncontradicted evidence of the trainmen, including the engineer, is that, not to exceed 15 minutes after they arrived at the wreck near Ladysmith, the engine of the passenger train was uncoupled, and it proceeded to assist in removing the wrecked engine; that it was engaged in that work not to exceed 50 minutes (some witnesses place it at from 35 to 40 minutes, and the outside limit of all the testimony is 50 minutes); that the engine was then brought back and attached to the passenger train, and the heat connected as usual. It may therefore be said to be a verity in the case, that from the time when plaintiff first awoke, as they first approached the wreck, to the time of the pneumonic chill, no more than an interval of from 65 to 70 minutes could have elapsed; and it was during this time, it is claimed that he contracted pneumonia. There is practically an entire absence of evidence to show that the temperature of the car was cold or damp or dangerous to sleeping persons during this night. At Barron 30 miles west of Ladysmith, the maximum temperature on the 12th was 76 degrees, the minimum 58 degrees. At Prentice, 40 miles east of Ladysmith, the maximum temperature on that day was 75 degrees, the minimum 60 degrees. These two places are the nearest to the place of the wreck showing the exact temperature, and it is fair to assume that the temperature at Ladysmith did not differ very materially from that at Barron and Prentice, being in the same latitude and only from 30 to 40 miles distant, west and east, respectively, from these two places. Mrs. Galloway, a passenger upon the sleeper testified that she was dressed in ordinary spring clothes; that she retired about 10 or half past 10 in the evening, undressed, and put on an ordinary sleeping gown; that before she retired she used no wraps or coats; that she was comfortable, noted nothing abnormal about the temperature of the car; and that after she retired she used comfortable. Miss Holland, another passenger, corroborates this testimony. There were eight or ten other passengers in the car at the time. The porter of the train testified that the temperature of the car did not fall below 60 degrees; that it was from 60 to 65 degrees. Some of the men working about the wreck testified that it rained before the passenger train arrived at the wreck, but that it did not rain while the train was there. Others said there were occasional light showers during the night. All unite in saying that the night was not a cold one; that they were comfortable when standing about the wreck; that there was no sleet or snow, and no unusual wind, or anything to indicate a cold night. The car had double sash and heavy curtains’ inside of the windows. In the car, before the passengers retired, there were six large acetylene lamps each with four burners, burning in the body of the car and in the ceiling over the aisle. There was also one smaller lamp in the smoker, one in the drawing room, one over the door of the smoking room, and four toilet-room and two aisle lamps. The testimony is uncontradicted that these lamps give out considerable heat; also that after the passengers retired two of these lamps were left burning. One of these four-burner lamps was in front of plaintiff's berth. Each berth had heavy curtains in front, and was furnished with a pair of large heavy woolen blankets and two sheets as covers. Plaintiff claims there was a sudden drop of temperature in the car. This claim is wholly unsubstantiated by any direct evidence, and also by all reasonable inferences to be drawn from the whole testimony in the case. It does not appear that the doors or windows of the sleeper were open in the evening, except, perhaps some of the deck sash. But, even if they were, in the absence of a strong wind, and there is no evidence of any, it is a matter of common knowledge that such a car, standing upon the track and being sufficiently heated at 11:30 o'clock p. m., so that both plaintiff and other passengers felt comfortable, would not cool suddenly. The cooling would be the result of gradual radiation of heat, and the process would be a slow one. Especially must that be so in an outside temperature of about 58 degrees. So it cannot be said the evidence shows any sudden change in temperature. Indeed, the uncontradicted evidence, and all reasonable inferences that can be drawn therefrom, is to the effect that, if there was a change, it was a slow and gradual one. On the evening of the 11th plaintiff took a Turkish bath at Minneapolis, and remained in the bathrooms all night. During the day of the 12th he went to different offices and mills in the city of Minneapolis. There

was a light shower during the afternoon, but he was not exposed to it. There is an entire absence of evidence as to what exposure, if any, plaintiff had been subjected to previous to the time he left Escanaba for Minneapolis on the night of the 10th. He testified, however, that he never felt better than he did when he left home, and that he felt all right when he left Minneapolis on Saturday evening at 6:30. The above is a fair summary of all the material evidence concerning the conditions under which plaintiff slept in the car. If any legitimate inference can be drawn therefrom, it must be to the effect that plaintiff’s pneumonia was not caused by the atmospheric conditions that obtained in the car while he slept, or while he was awake. But it is not necessary, in order to sustain the action of the trial court, to draw any such inference. If it appears that it cannot be said with any reasonable certainty that plaintiff's pneumonia was caused by the atmospheric conditions of the car, or that they were such as to render it dangerous for healthy persons to sleep therein, protected as the passengers were, then the court's action must be sustained. Verdicts cannot rest upon mere conjecture. They must be bottomed at least upon a reasonable certainty. In this case, under the whole evidence it is a matter of pure conjecture where plaintiff contracted his pneumonia. and the trial court properly amended the verdict and directed judgment for defendant. Judgment affirmed.

COOK et al. v. DOUD SONS & CO. (Supreme Court of Wisconsin. Nov. 14, 1911.)

1. APPEAL AND ERRoR (§ 1170*)—REVIEw— HARMLESS ERROR. A complaint alleged that defendant operated a traction engine without a proper Spark, arrester, the one in use being an old, defective screen, full of holes, which had never been effectually repaired for that reason, together with the negligent use of wood as fuel, and the engine emitted large and dangerous Sparks, which ignited the property of plaintiff. Evidence showing that the arrester was in perfect shape as originally constructed, but that sparks escaped when wood was used, this being a coal arrester, was objected to on the ground that it was not within the issues made by the complaint. Held that, as the arrester was in the possession of defendant, who might have ascertained its defects, and as defendant made no showing of surprise, the error in admitting the evidence was, under St. 1898, § 2669, providing that no variance shall be deemed material, unless it shall actually mislead the party, and section 3072m as added by Laws 1909, c. 192, providing that no judgment shall be reversed for any error of pleading, unless such error affected the substantial rights of the party, harmless. [Ed. Note.—For other cases, see Appeal, and #3; Cent. Dig. §§ 4540–4545; Dec. Dig. § 1170.

2. NEGLIGENCE (8 134*)—ACTIONS-EVIDENCE / vention of fires along the highway upon which -SUFFICIENCY.

the engine travels. In an action against the operator of a (Ed. Note. For other cases, see Negligence, traction engine for negligently firing plaintiff's Dec. Dig. & 21.*] barn, evidence held to support the findings of the jury that the spark arrester was insuffi- 10. TRIAL ($ 296*)—INSTRUCTIONS-INSTRUC

TIONS CURED BY OTHERS. to exercise ordinary care in providing and us In an action against the operator of a ing the spark arrester; that the failure to ex traction engine for negligently firing plainercise ordinary care was the proximate cause tiff's barn, where the jury were instructed that of the injury; and that defendant's engine set for the prevention of fires the user of a tracthe barn on fire.

tion engine should provide the best and most [Ed. Note.--For other cases, see Negligence, approved appliance known to him and in genDec. Dig. § 134.*]

eral practical use, and which under the cir

cumstances it is reasonable to require the own3. NEGLIGENCE (8 125*)-ACTIONS-EVIDENCE er to adopt, and the court also stated that this -ADMISSIBILITY.

rule does not mean that the owner of such The frequency of fires ignited by an engine engine is bound to adopt any particular kind as it passed along the highway is evidence of of appliance for the prevention of fire, the error improper management or construction.

in the first part of the instruction was cured. [Ed. Note.- For other cases, see Negligence, [Ed. Note.- For other cases, see Trial, Cent. Cent. Dig. 88 239-244; Dec. Dig. $ 125.*]

Dig. 88 705–713; Dec. Dig. 296.*] 4. EVIDENCE (8 506*)-OPINION EVIDENCE-11. NEGLIGENCE (8 125*) ACTIONS -- EviSUBJECT-MATTER OF OPINION EVIDENCE,

DENCE-SCOPE. Opinion evidecce may properly be given as

In an action against the operator of a to the very point the jury are to decide, where traction engine for negligently firing plaintiff's such point is within the field of expert testi- barn, evidence that other fires had been caused mony, and the opinions offered are based on by the engine was admissible, not only on the undisputed facts, or assumed facts warranted issue of the condition of the engine, but also by the record.

on the issues whether the engine caused the [Ed. Note.-For other cases, see Evidence, fire in question, and whether the operator had Cent. Dig. $ 2309; Dec. Dig. § 506.*]

notice of the insufficiency of the spark arrester. 5. NEGLIGENCE (8 124*)-ACTIONS-EVIDENCE

[Ed. Note.-For other cases, see Negligence, -ADMISSIBILITY.

Cent. Dig. 88 239-244; Dec. Dig. $ 125.*] In an action for firing plaintiff's barn by the negligent operation of a traction engine, Appeal from Circuit Court, Marathon Counwbere it appeared that wood was burned, ty; James O'Neil, Judge. though the engine was equipped with a coal

Action by George S. Cook and another spark arrester, evidence of a comparison of the sparks emitted by wood or coal was competent against Doud Sons & Co. From a judgment on the issue of ordinary care in using wood as for plaintiffs, defendant appeals. Affirmed. fuel. (Ed. Note.-For other cases, see Negligence,

This action was brought to recover damDec. Dig. $ 124.*]

ages for the destruction of plaintiff's barn 6. APPEAL AND ERROR ( 1050*)—Review, and other property by fire, alleged to have HARMLESS ERROR.

been caused by the emission of sparks from In an action for firing plaintiff's barn by a traction engine while being operated by the negligent operation of a traction engine, defendant on the highway near plaintiff's where one of defendant's witnesses testified on cross-examination that all spark arresters have premises. At the close of plaintiff's case some open space, it was not prejudicial error

motion for nonsuit was denied, and at the to permit plaintiff to contradict that evidence. close of all the evidence motion to direct (Ed. Note.-For other cases, see Appeal and

verdict for defendant was denied. Error. Cent. Dig. 88 4153-4160; Dec. Dig. 8 1030.*]

The jury returned the following special

verdict: 7. NEGLIGENCE (8 125*)—ACTIONS-EVIDENCE -ADMISSIBILITY.

"Question No. 1. Was the fire which burnIn an action for firing plaintiff's barn by ed plaintiff's barn and other property caused the negligent operation of a traction engine by sparks or cinders of fire emitted from dealong the highway, evidence of tires caused by the engine upon its return trip on the same

fendant's traction engine? Answer: Yes. highway was admissible; the condition sur “Question No. 2. Was said traction engine rounding these fires being the same.

properly equipped with a spark arrester rea(Ed. Note.-For other cases, see Negligence, sonably sufficient to prevent the escape of Cent. Dig. $8 239-244; Dec. Dig. & 125.*]

sparks and cinders?

Answer: No. & NEGLIGENCE (8 21*)-ACTS CONSTITUTING

"Question No. 3. Did the defendant fail to -MACHINERY-FIRES—TRACTION ENGINES.

The owner and operator of a traction exercise ordinary care in providing and using engine should use reasonable precaution to pro- the spark arrester in use at the time plainvide engines so constructed and equipped as tiff's property was burned? Answer: Yes. to avoid the unnecessary communication of fire to premises adjoining the road on which it

“Question No. 4. If you answer question travels.

No. 3, Yes,' then was such failure to exer(Ed. Note.-For other cases, see Negligence, cise ordinary care the proximate cause of Cent. Dig. && 28-30; Dec. Dig. & 21.*]

plaintiff's damage? Answer: Yes. Q. NEGLIGENCE ($ 21*)-Acts CONSTITUTING “Question No. 5. What was the value of - MACHINERY-FIRES—TRACTION ENGINES. plaintiff's barn and shed addition at the

The owner and operator of a traction engine is not bound to provide the best and most

time it was burned? Answer: $657.75. approved appliance known to him for the pre “Question No. 6. What was the value of

plaintiff's hay at the time it was burned? 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 between 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

operated the engine by burning coal, instead 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 arrester, as constructed, had a large opening at the top, through which the sparks escaped, 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 jt 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 versed, set aside, or new trial granted, in any action or proceeding, on the ground of error 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,

fire. There was a high wind blowing towards the barn from the highway where the 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. [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 witnesses were 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 ev1dence 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

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