Leasum v. Green Bay & W. R. R. 138 Wis. 593. the car containing their live stock. The case is almost barren of proof showing a contract, a custom, or a necessity which entitled plaintiff to ride in this particular car, and were it not for one or two items of testimony to which we will now allude this judgment could not be sustained. The evidence of the plaintiff shows that, after the collision occurred, the conductor of the train asked plaintiff if he was all right and could go ahead with the car, to which plaintiff replied that he thought so; that he was permitted to ride in the freight car, without objection or without protest, from Whitehall to East Winona on the defendant's road, and from thence to Keokuk on the Chicago, Burlington & Quincy Railroad, and that he occupied the car on his journey from Saturday morning at 9 o'clock until the following Monday morning. The attitude of the conductor of the train which carried the plaintiff from Whitehall was not consistent with any assumption other than the one that plaintiff was in the car as a matter of right. It was the duty of this conductor to examine the transportation of the plaintiff. He knew that he had been. at least slightly injured while in the freight car before his train left Whitehall. If that transportation or the custom of the company did not entitle the plaintiff to ride where the conductor found him and afterwards permitted him to ride, it is fair to assume that he would have requested plaintiff to occupy the portion of the train provided for the accommodation of passengers. It is true the conductor testified that he told plaintiff he could not ride in this car, and that he only permitted him to do so because plaintiff informed him that he wanted to remain in the car awhile and fix things up. The plaintiff denies that the conductor made any suggestion that he should not ride in the freight car, and it is undisputed that he did ride in it until it was switched out of the train at East Winona and thereafter until it reached Keokuk. Under this state of the proof the jury might well infer that the contract of carriage was in harmony with the conduct of the parties Leasum v. Green Bay & W. R. R. 138 Wis. 593. thereunder, and that the construction placed thereon by the parties was in accordance with its terms. The testimony of the plaintiff further shows that he saw and talked with the brakeman of the freight crew while the car was being put in place by the freight engine preparatory to being coupled to the west-bound train, and that the brakeman asked him if everything was all right as they were about to hitch on. This evidence was disputed, and it was for the jury to determine the fact. The brakeman testified that he had orders from the agent to switch the car containing Mr. Leasum onto the west-bound train and that he did switch it onto that train. He watched the brakeman of the west-bound train couple the car onto the engine hauling such train. Having been instructed by the agent to switch the car in question onto the west-bound train, and having apparently superintended such work, the inference is well-nigh conclusive that he gave the engineer and brakeman of such train to understand that the car was ready to be moved in the condition it was with the plaintiff therein. No request was made of the plaintiff to vacate the car. It may well be, as contended by appellant, that a brakeman cannot ordinarily waive the rules adopted by his employer regarding the carriage of passengers, and that notice to him of a fact or condition may not always be notice to his principal. But it is apparent that it was his duty in this case to ascertain whether the car in question was in proper condition to be switched, and, if it was, to move it. Otherwise it was apparently his duty to let it remain where it was. Having ascertained that the plaintiff was in the car with his goods and live stock, it was a question for the jury to say whether the conduct of the defendant's employees was such that plaintiff was justified in inferring that he was rightly in the car. We conclude that there was sufficient evidence in the record to sustain the findings of the jury to the effect that the plaintiff was not guilty of contributory negligence. By the Court.-Judgment affirmed Bratz v. Stark, 138 Wis. 599. BRATZ, Appellant, vs. STARK, Respondent. March 9-March 30, 1909. Negligence: Fires: Evidence: Special verdict: Omissions: Waiver. 1. In an action for damages on account of a fire alleged to have been negligently started by defendant on his own land and negligently allowed to escape onto plaintiff's adjoining land, the evidence is held to sustain a verdict finding that the fire was not caused by defendant's negligence. 2. A special verdict in such case finding that the fire which started on defendant's lands and burned over the lands of the plaintiff was not caused by negligence of the defendant, is held to have covered the question whether that fire started by reason of any negligence of defendant in starting or guarding certain brush pile fires from which it was claimed the fire in question originated; and, the evidence being undisputed and conclusive that after that fire was discovered no efforts would have availed to prevent its spread to plaintiff's land, it was not necessary to submit that question to the jury. 3. Under sec. 2858m, Stats. (Laws of 1907, ch. 346), omission to submit any controverted question in the special verdict is not ground for reversal if there was no specific request for such submission. A finding thereon in conformity with the judgment will be presumed to have been made by the court, and if the evidence is sufficient to sustain such finding it will not be disturbed. APPEAL from a judgment of the circuit court for Monroe county: J. J. FRUIT, Circuit Judge. Affirmed. Action for damages alleged to have resulted from a fire negligently started by defendant on his own premises and negligently allowed to escape unto the plaintiff's timber land lying to the east of him. The evidence disclosed, without much dispute, that about 1:30 or 2 o'clock a forest fire was discovered upon a forty acres belonging to defendant, covered with a growth of brush and small timber. The fire ran over certain of plaintiff's premises lying to the eastward and caused damage thereto. It appeared that defendant owned other land immediately south of that upon which the fire started, Bratz v. Stark, 138 Wis. 599. that the same had been cleared from brush and the brush gathered into piles, and that the morning of the same day defendant had burned eight of these piles of brush. He testified that he had continued his attendance on them from 7 a. m. till noon, long after they were burned to ashes, and that no fire escaped from them to the place where the forest fire was found, which was about twenty-five rods from the nearest of these piles. Much evidence was given as to meteorological conditions and as to the precautions exercised by defendant. The court submitted to the jury a special verdict, of which but one question was answered, and that in the negative, to wit: "Was the fire that started on defendant's lands on May 18, 1907, and which burned over the lands of the plaintiff, caused by negligence of the defendant?" The court instructed the jury to consider, in response to this question, both whether defendant was negligent in causing the fire or in permitting the fire to escape into the adjoining woods, and that they should answer affirmatively if they found negligence in either respect. After motions to reverse the answer to this question and for a new trial, judgment was entered in favor of the defendant, from which the plaintiff appeals. G. M. Perry, for the appellant. Thorwald P. Abel, for the respondent. DODGE, J. The only error which is both assigned and argued by appellant consists in permitting the verdict to stand in defiance of asserted uncontradicted evidence that defendant negligently caused the fire which damaged plaintiff. For convenience we will refer to the fires started by the defendant in the morning to burn his brush as the "brush pile fires," and to that which originated in the afternoon in the woods on defendant's land as the "woods fire." There was no direct evidence how the latter started. It is argued that the proximity of the brush pile fires was such that an inference must be Bratz v. Stark, 138 Wis. 599. drawn that either those fires escaped and ran into the woods or that the high wind blew sparks or brands. There is evidence which, if credited, fully negatives the former theory, and there is evidence that defendant stayed with the brush pile fires until they had entirely burned out, leaving not until nearly noon. There is also evidence that defendant did nothing else to in any way cause the woods fire. So that we think there was evidence at least sufficient to warrant the jury in absolving defendant from any responsibility for the starting of the woods fire, whether by negligence or otherwise. As to any negligence in permitting the woods fire to escape eastward unto plaintiff's land, the evidence is undisputed that at the time it was discovered it was raging before a high westerly wind, with such vehemence that no human efforts could have stayed its progress to the leeward, and that it would have been not only futile but foolhardy to make any efforts in the face of that fire. Such evidence was clearly sufficient to at least make a jury question whether defendant was guilty of negligence in not making such attempt. Apart from such omission there is no suggestion of negligence. This assignment of error cannot be sustained. There is some argument, though no assignment of error, that the verdict does not cover the issues, since the one answered question of the special verdict does not inquire as to defendant's negligence in permitting fire to escape after it had been started. We have no doubt that the question in the verdict refers to the woods fire, since that was the one that escaped unto and injured plaintiff's land. Therefore inquiry as to whether that fire was caused by defendant's negligence did submit the question whether any negligence of his, either in starting or in guarding the brush pile fires, was responsible for originating the woods fire; and the court very clearly instructed the jury to so consider the evidence in answering the question submitted. After the woods fire started and was discovered, the evidence is undisputed and conclusive that no |