Brown v. Brooks

85 Wis. 290 | Wis. | 1893

WiNsnow, J.

We are satisfied that the motion for a nonsuit.was properly overruled. Careful perusal of the evidence leads us to agree with the circuit judge in his con-elusion that there was sufficient evidence to go to the jury on the questions of the alleged negligence of the defendants in starting and handling the Odekvrk fire, and whether it was the OdeMrk fire which destroyed plaintiff’s hay, as well as on the question whether the burning was a joint undertaking, so as to render Brooks liable for the acts of the others, though not personally assisting at the Odekirk fire. It was not of itself an unlawful or negligent act for the defendants to burn the grass around their stacks for the purpose of preventing a prairie fire from destroying them. If such fire is "kindled at a suitable time and place, and due and reasonable diligence be taken to prevent its spreading to the property of others, there is no actionable negligence. Fahn v. Reichart, 8 Wis. 255.

A question of some difficulty arises, however, upon the instructions given and refused by the court upon the question of contributory negligence of the plaintiff. The thirteenth question of the special verdict was as follows: “ Could the plaintiff, by the exercise of ordinary care and prudence, have saved the hay and grass, and prevented the same from being burned, after he saw or knew that there was danger of its destruction by fire?” The question was answered in. the -negative. The court. charged the jury upon this question as follows: “ The failure of the plaintiff to remove the dry grass around his property, in order to prevent the spread or communication to it of fire set or spread by the fault or misconduct of others, was not wrongful and improper on his part,— not culpable omission of duty, by which he may have been said to have co-operated in the destruction of his own property. The law imposes no such duty on him. In the exercise of .his-lawful. rights,..every_ man has a right to act on the belief _that every other per; son will perform his duty and obey the law, and it is not., negligence to assume that he is not exposed to danger whichTcan only come to him through a disregard of law on_ the part of some other persons. As there is a natural presumption that every one will act with due care, it cannot be imputed to the plaintiff as negligence that he did not anticipate culpable negligence on the part of the defendants, if there was any.” This was substantially an instruction that the plaintiff’s failure to remove or attempt to remove the grass around his stacks, by mowing and burning, was not negligence. Is this correct?

The general and frequently applied rule is that the question of negligence or not is for the jury. There are exceptions to the rule, and where the facts are undisputed it frequently becomes the duty of the court to decide the question. It is practically claimed by plaintiff that this is such a case. It is said that it is a case where plaintiff’s property was placed in sudden and imminent danger by the negligence of defendants^ and that negligence is not to be imputed to' plaintiff because he made an error in judgment and attempted to remove his hay rather than to protect it by burning around the stacks. The principle that one who by another’s negligence is suddenly placed in a situation where he must adopt a perilous alternative, does not adopt the safest or wisest course, and is injured, is not to be charged with negligence, is well recognized. It is plain,, however, that this case does not come within-this principle, The rule is based upon the fact that the plaintiff encounters, without warning, a sudden emergency and imminent peril, when cool judgment cannot be expected nor do# manded. Manifestly, it cannot and ought not to apply where the danger is simply a danger to property which has been seen and apprehended, or ought to have been apprehended,, for days prior to the event. Here there had been fires raging upon parts of the marsh for days,— the plaintiff himself saw the fire which escaped from the Odeldrh stack more than twenty-four hours before the fire reached his ground, and apprehended danger therefrom. There! was ample time for him to exercise his judgment and discretion/ It was clearly not a case of a sudden emergency and peril.

But it is claimed that the instruction is justified by the principles laid down in the case of Kellogg v. C. & N. W. R. Co. 26 Wis. 223. It is well to note, in the first place, the exact question in issue and decided in that case. It was a case where fire was kindled in the dry grass and weeds on the right of way of a railroad by sparks from an engine, and escaped to plaintiff’s land, and was carried by dry grass and weeds thereon to the stacks and barns of the plaintiff.' The trial court charged that it was for the jury to say whether the plaintiff was negligent in leaving the dry grass and weeds on his own land, and refused to instruct the jury that it was negligence ¡per se, which would defeat a recovery, for plaintiff to leave the grass and weeds uncut on his land. It was held that there was no error in thus instructing the jury. These were the points actually decided so far as necessary to be stated in this connection, and it is manifest that they do not reach the question here raised. It is true that in the opinion of the court language is used which seems tq indicate that negligence is not to be imputed to a man so long as he> uses his own property in a lawful manner, whatever may be the negligence of others; •but that language was not essential to the questions involved and has been in effect disapproved by this court in Murphy v. C. & N. W. R. Co. 45 Wis. 222.

Furthermore, it is evident from the opinion filed upon the motion for rehearing in the Kellogg Case that the principles laid down were not intended to have any such sweeping effect as is contended for in this case. It is there said (page 257): “ A man in his senses, in face of what has been aptly termed a ‘ seen danger,’— that is, one which presently threatens and is known to him,— is bound to realize it, and to use all proper care and make all reasonable efforts to avoid it, and if be does not it is his own fault; and, he having thus contributed to his own loss or injury, no damage can be recovered from the other party, however negligent the latter may have been.” A distinction is then drawn between this “ seen danger ” and a danger which exists in anticipation merely, and the danger in that case of a possible fire at some time was held to be one of anticipation merely. The danger in this case was as certainly a “ seen danger ” as any which could be imagined; and, on the basis of the law as finally declared in the Kellogg Case itself, the-rule here must be that it was the duty of the plaintiff to use all proper care and reasonable effort — namely, the care; and effort which reasonably prudent men under like cir-; cumstances would use — to save his hay from fire; and ¡ whether he did so or not, and whether, if not, his failure so ’ to do directly contributed to the destruction of his hay, was,; a question for the jury to decide, and they should not have been instructed, as matter of law, that the failure to remove the grass around the stacks was not negligence. This rule is substantially recognized in Murphy v. C. & N. W. R. Co. 45 Wis. 222, and Mills v. C., M. & St. P. R. Co. 76 Wis. 422. This substantial error necessitates a reversal.

A note is published with the above case in 21 L. R. A. 255, on the question of liability for setting fires which spread to the property of others. — Rep.

By the Court.— Judgment reversed, and cause remanded for a new trial.