#### Rylander, Appellant, vs. Laursen, Respondent.

*January 10*

January *31, 1905.*

*Negligence: Sparks escaping from sawmill: Test of care required: Instructions to jury: Competency of witness as to value.*

1. In an action for damages for tlie destruction of property by fires alleged to have been set by sparks from defendant’s sawmill, there being no evidence as to what spark arresters were used by other mill operators, or even that there were any other mills in that locality, it was error to instruct the jury that it was defendant’s duty to use such reasonable means and appli- ' anees as were commonly and usually used by men engaged in the same or similar business in that locality in preventing fires from escaping from the smokestacks of their mills.

*32. Such instruction was inaccurate, also, because giving as a test of defendant’s negligence the use of such appliances as are “commonly and usually used by men engaged in the same or similar business,” whereas the true test is the use of such appliances as are ordinarily used by men of ordinary care and prudence, or by men generally, engaged in the same or similar business under the same or similar circumstances.

3. In a purely tort action negligence of the defendant in the use of appliances in a dangerous business is not to be tested or measured by the usage of others in the same business in a given small locality.

4. Where there was credible evidence tending to show that a fire set by sparks from defendant’s mill had been burning some time on his own premises to the knowledge of his employees, and had been negligently allowed to escape, it was error to charge that if defendant was not negligent in allowing sparks to escape from his smokestack he was not negligent in allowing the fire to escape from him after it was discovered.

5. A witness who testified that he had worked on logs about fifteen winters and knew the value of certain logs was competent, *prima facie,*to testify as to that value, although he had never bought or sold logs himself.

Appeal from a judgment of tbe circuit court for Wash-burn county: A. J. Vikje, Circuit Judge.

*Reversed.*

*A. L.*Bugbee, for the appellant.

Eor the respondent there was a brief by *Mead <& Hoar,*and ■oral argument by *L. H. Mead.*

WiNSLOw, J.

This is an action to recover damages for the destruction of a quantity of saw logs and standing timber upon lands of the plaintiff by two separate fires which are alleged to have been set by the negligent escape of sparks from the smokestack of defendant’s sawmill located upon adjoining lands. Upon a former appeal in this action a demurrer to a counterclaim set forth in the answer was sustained. See *Rylander v.*Laursen 113 Wis. 461, 89 N. W. 488, where the substance of the complaint will be found more fully stated. The action has since been tried before a jury, a verdict rendered for the defendant, and from judgment upon the verdict the plaintiff appeals.

*4The particular negligence alleged and relied on by the plaintiff was in not having a sufficient wire netting or spark arrester at the top of the smokestack of the mill. As to the duty of the defendant in this regard the. court charged the jury as follows:

> “You are instructed that it was the duty of the defendant in operating his mill to use reasonable care, caution, and prudence in preventing fire escaping from the smokestack of said mill, and that it was his duty to use such reasonable means and appliances as are commonly and usually used by men engaged in the same or similar business in this locality in preventing fires from escaping from the smokestacks of their mills.”

Exception was duly taken to the giving of this instruction, and we think rightly, for several plain reasons. In the first place, there was absolutely m> evidence in the case as to what appliances in the way of spark arresters were used by other mill operators, nor even that there were any other mills in that locality. This fact alone would be fatal to the instruction, because there is no evidence to which it can apply, and the only way it could be used by the jury would be to draw upon their own knowledge on the point if they had any. This must be error, because the matter is not one of common knowledge.

Eurtker than this, the instruction is inaccurate because it gives as a test the use of such appliances as are “commonly and usually used by men engaged in the same or similar business,” whereas the true test is the use of such appliances as are ordinarily used by *men of ordinary care and*prudence, or by men generally, engaged in the same or similar business under the same or similar circumstances. *Guinard v. Knapp-Stout & Co. Co.*95 Wis. 482, 70 N. W. 671; *Innes v. Milwaukee,*96 Wis. 174, 70 N. W. 1064; *Jensen v. Hudson 8. Co.*98 Wis. 80, 73 N. W. 434; *Prybilski v. N. W. C. R. Co.*98 Wis. 416, 74 N. W. 117; *Baxter v. C. & N. W. R. Co.*104 *5Wis. 307, 80 N. W. 644; *Sladky v. Marinette L. Co.*107 Wis. 260, 83 N. W. 514; *Kreider v. Wis. River P. & P. Co.*110 Wis. 645, 86 N. W. 662; *Boyce v. Wilbur L. Co.*119 Wis. 642, 97 N. W. 563.

Another feature of tbe instruction, which, while not fully argued in this case, seems to demand some attention, is that the test to be applied is limited to the usual appliances used by men *in that locality.*As will be seen by reference to the cases last above cited, this court has held that the use of an appliance cannot be called negligent if it be shown to be an appliance ordinarily used by the great majority of men (or, as sometimes expressed, men of ordinary care and prudence, or men generally) engaged in like business under like circumstances. This court has not, so far as we can now ascertain, approved an instruction measuring care in the use of appliances in a dangerous business by the usage of men in a certain small locality, nor can we think that such rule can be safely adopted. Neither do the authorities generally so limit the rule. 1 Thompson, Oomm. on Neg. § 31; 4 id. §§ 3769, 3991, 3993, and cases cited.

It is true tjiat, as bearing on the question of defendant’s negligence, it has been held that evidence may without error be received of the customary means or appliances used in a certain locality *(Jochem v.*Robinson, 72 Wis. 199, 39 N. W. 383), but this proof is admissible because the evidence of the means used in one locality is a step in the proof of the appliances generally used in many localities. So, when the action is based upon breach of contract, or upon toad arising out of failure to discharge a duty resulting from a contract, local customs or usages, and sometimes even individual customs, may, within certain limits, be proven as tending to show what the contract really was, or upon what the parties in the particular case had the right to depend in their relations with each other. *Marshall v. Am. Exp. Co.*7 Wis. 1; *Lamb v.**6*Klaus,*30 Wis. 94; *Wausau B. Co. v. Dunbar,*75 Wis. 133, 43 N. W. 739; *Hooper v. C. & N. W. R. Co.*27 Wis. 81; *Shores L. Co. v. Stitt,*102 Wis. 450, 78 N. W. 562; 1 Morse, Banks & Banking (4th ed.) § 242. Compare, also, the rule in malpractice actions, where the skill required of a physician is said to be that degree of skill usually exercised by physicians in good standing of the same school of practice in the vicinity. *Nelson v. Harrington,*72 Wis. 597, 40 N. W. 228; *Wurdemann v. Barnes,*92 Wis. 206, 66 N. W. 111. Again, where the question is whether the plaintiff has assumed the risk, or has been guilty of any other phase of contributory negligence, the manner in which the opposite party has customarily conducted his business in that regard, if known to the plaintiff, may be shown as a fact having a legitimate bearing upon the quality of the plaintiff’s act or failure to act. *Hanlon v. Milwaukee E. R. & L. Co.*118 Wis. 210, 95 N. W. 100.

It is very apparent, however, that the last two instances of proof of local or individual custom cannot justify a holding that the negligence of the defendant in a purely tort action may be measured by the usage of others in the same business in a given small locality. While the question has not been adequately argued in this case, we feel justified in saying that we see no occasion now to depart from the rule already stated and frequently laid down, to wit, that in such case the defendant’s conduct or use of appliances is to be measured by the general conduct or use of people of ordinary care and prudence (or the great majority of people) engaged in the same or similar business under the same or similar circumstances.

In the first cause of action in the present case the defendant was charged with negligence in two respects, viz.: (1) In negligently allowing fire to escape from the smokestack, and (2) in negligently allowing the fire to escape from his own *7premises. As to tbis cause of action tbe court charged as follows :

> “If tbe defendant did use tbe ordinary means and ordinary appliances, and was guilty of no negligence in allowing sparks to escape from bis smokestack, then, under tbe evidence in tbis case as to tbe first fire, yon cannot find defendant guilty of any negligence in allowing tbe fire to escape from bim after it was discovered.”

Tbis was error, because there was evidence in tbe case, which cannot be called incredible, tending to show that tbe fire bad been burning half an hour upon tbe defendant’s own premises and to tbe knowledge of some of tbe defendant’s employees before any effort was made to put it out; and by tbe instruction quoted tbis evidence, which clearly tended to show negligence in allowing tbe fire to escape, was taken from tbe consideration of tbe jury.

A witness called by tbe plaintiff to prove tbe value of tbe logs destroyed by fire testified that be bad worked on logs about fifteen winters, and sawed about 150 of tbe plaintiff’s logs which were burned, and knew their value, but that be bad never bought or sold logs himself. He was then asked bow much tbe logs which be sawed were worth per thousand, and an objection to tbe question was sustained on tbe ground that tbe witness was not competent to testify. Tbis was error. His testimony that be bad worked on logs for many years, knew tbe logs in question, and knew their value, was enough, *prima facie,*to permit bim to testify as to that value. Values may be learned in other ways besides in buying and selling tbe article itself.

*By ihe Oov/rt.-*— Judgment reversed, and action remanded for a new trial.