Baylor v. Stevens, 16 Pa. Super. 365

Baylor v. Stevens

16 Pa. Super. 365 | Pa. Super. Ct. | 1901

Opinion by

Beaver, J.,

The defendant, in preparing a lot of cleared land for agri*371cultural purposes, caused the refuse timber and brush to be gathered together in heaps and fired. The fires so kindled were watched and supervised by his employees, who left them on Friday evening, supposing that they were in such a condition as would not endanger the adjoining timber lands. On the Sunday following, about two o’clock in the afternoon, fire was discovered in the defendant’s timber land adjoining the clearing. The plaintiff alleged that this fire communicated to' his timber land adjoining that of the defendant and burned over a tract of 200 or 250 acres, destroying to a great extent the growing timber and injuriously affecting the value of his property. He brought suit in trespass against the defendant, and in his statement alleged “ that the defendant unlawfully, negligently and carelessly set fire to certain logs and timber upon said tract of land adjoining the said tract of land of the said plaintiff as aforesaid, causing the same to catch fire and to communicate with the growing timber upon the said lands of the defendant, which said fire spread to such extent that it communicated with and burned the timber being then and there upon the said lands of the said plaintiff.”

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 *372upon the lands of the plaintiff, the statement supports the charge. It is certainly concise, if not as specific as it might be. The trial developed the fact that the defendant was prepared to meet all the allegations of the plaintiff. The statement evidently, therefore, furnished him with the information which it was necessary for him to have, of the ground upon which the .plaintiff sought to recover, in order to prepare for and properly present his defense, and this is one of the principal functions of a statement.

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*373ens or his men to take precautions against the fire escaping that they did not take? Was it their duty to guard against its .running beyond the boundaries it was intended to be kept within ? Ought there to have been something done in the way of clearing a strip around or putting it in such a condition that fire would not have run across, or was it obligatory on Stevens and his men to guard — keep an eye on it — and, if it threatened to escape and escaped, to put it out, before it had run far or done harm ? When it was left, if there was fire there still — and I believe the defendant claims that you can find that there was no fire there when the workmen left — if there was fire there, was it negligent for them to go away and not keep a guard or an eye on it? Unless it is shown that there was negligence in the care of the fire and keeping it within boundaries, unless it is shown that the defendant did something or omitted to do something that was a fault, or something which he ought not to have done as a prudent man or omitted to have done something which he ought to have done as a prudent man — if that is not made out by Baylor, then he has not convicted the defendant of negligence, even if the fire did run from the clearing onto Baylor’s woodland.” This general instruction, together with that complained of in the sixth specification of error and the answers to the plaintiff’s points, as contained in the seventh, eighth and tenth specifications of error, combined, constitute a fair and comprehensive presentation of the case to the jury. They could be considered erroneous only upon the theory that there was no evidence of negligence to be submitted to the jury.

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 *374and unsatisfactory. We do not understand that this specification of error is relied upon by defendant. It is not pressed in the argument. It is not sustained.

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.