16 Pa. Super. 365 | Pa. Super. Ct. | 1901
Opinion by
The defendant, in preparing a lot of cleared land for agri
The defendant, at the close of the plaintiff’s testimony, asked for a nonsuit, and, at the close of the trial, asked for the affirmation of a point, “ that, under the pleadings and evidence in this case, the verdict must be for the defendant.” This was refused, the question of the defendant’s liability being submitted to the jury.
1. The court, therefore, held the statement sufficient, which, it is strenuously argued, was error. As we understand the plaintiff’s contention, he does not deny the right of the defendant to fire the piles of refuse logs and brush upon his cleared land, but insists that these fires were so carelessly managed that, the fire from them communicated to the defendant’s own standing timber in the immediate vicinity, and that the fire so communicated spread in such a way as to reach the lands of tbe plaintiff and destroy their value as timber lands. This is in substantial accord with the statement, the material part of which we have quoted above. Whether the negligence consisted in kindling the fire originally, or in “ causing the same to catch fire and communicate with the growing timber upon the lands of the defendant,” which in turn communicated with the timber
2. Was it the duty of the court to hold, as matter of law, that there was no evidence of negligence on the part of the defendant? The fires in the clearing were left from Friday until Sunday, without any supervision or oversight. In view of Bush’s testimony on cross-examination (appendix to appellant’s paper-book, page 55), that fire “ did break out in the side of the woods two or three times during the weekwas this negligence ? Did they communicate fire to the defendant’s standing timber ? The defendant and an employee on Sunday, after the fire was discovered, went upon his own land and endeavored to fight, as he expresses it, the fire. Did he go promptly ? Did he do all that was necessary to be done in subduing the fire upon his own land ? Did he notify plaintiff of the danger? If not, was it his duty to do so ? These were questions which the defendant could not ask the court below to rule as matters of law. The testimony in regard to the origin of the fire in the standing timber, and as to the condition of the piles of refuse in the clearing, was unusually contradictory. It was not the duty of the court to reconcile this testimony, or to pass upon the credibility of witnesses. If the plaintiff’s testimony was true, a northwest wind blowing at the time materially aided in the spread of the fire. Admitting, as the defendant contends; that he was not responsible for the wind, was it the exclusive cause of the firing of the plaintiff’s timber lands ? The court could not say so as a matter of law. Every material disputed question — and every material, question was disputed —was necessarily for the jury, and the evidence of both plaintiff and defendant was of such a character as to carry them to the' jury.
3. Was there error in the manner in which they were submitted ? In the general charge in what is assigned for error in the ninth specification the court says: “Was it the duty of Stev
4. The defendant’s fourth specification of error relates to the answer of the court to the plaintiff’s point for charge in regard to the measure of damages. This was a case in which the “ before and after ” rule peculiarly applied. Some of the young growing timber was entirely destroyed, and as timber had no value whatever. Its value was largely prospective, and yet its growth for years had given it an actual value which it was very difficult to measure by any fixed standard. The timber of larger growth, even after the fire, doubtless had some value for im- . mediate cutting, but its preparation for market under the circumstances might have involved as much of expenditure as it was worth. Any mode of calculating -the damages other than that adopted would have been complicated, uncertain, unreliable
5. The witness Rought was not competent to testify as to the market value of the lands at the time immediately before and after the fire. He had not been acquainted with them for several years prior to the fire, was not qualified — even according to his own view — to give an opinion as to their value and, notwithstanding the efforts of the court to help him out, did not show such a knowledge either of the land burned over or of similar land in the neighborhood as to bring him within the rule. His testimony was properly excluded.
The case throughout was fairly and laboriously tried. Great latitude as to time was given to both sides in the presentation of their case. The points for charge presented by both sides were fairly answered — sometimes with necessary qualifications • — and the general instructions were full, unbiased and adequate. The remarks of the court complained of as to the manner in which the fire in the clearing might have been circumscribed were based upon general experience and merely suggestive, and were not calculated to influence the jury as to the main question in the case submitted for their finding — that of negligence on the part of the defendant. We have carefully read the testimony throughout and, upon a consideration of the whole ease, can find nothing which will warrant reversal.
Judgment affirmed.