44 Barb. 424 | N.Y. Sup. Ct. | 1865
Upon the trial of this cause before the county court it appeared that the defendant, in the early part of the month of May, 1862, set fire to some log heaps on his premises, which were old and damp, and situated from five to ten rods from the defendant’s house, and about one third of a mile from the plaintiff’s barn. The land where the fire was set was damp and near a swamp, and had been burned the year previous. It was a dry time, it not having rained for two or three weeks. The defendant's hired man left him the same day of the fire, which was two days after it was kindled, and the defendant himself went away from home, the same morning, a distance of about two miles, and returned again about two o’clock in the afternoon. There was no wind, and it was a little hazy, when the defendant left. ' About ten o’clock in the forenoon the wind arose, and it blew a gale. The fire, which had been burning up to this time, appears to have followed the decayed material of an old fence, a portion of the way, and then must have blown over some distance to the defendant’s barn, which took fire, and with its contents, was consumed. There were other buildings in the vicinity, which were also burned at the same time.
It is sometimes quite difficult to determine what constitutes negligence, and the facts proved present a case here which in this respect is not entirely free from embarrassment.
In Stuart v. Hawley, (22 Barb. 619,) it was held that an individual has a right to set fire to his fallow, wood and timber, for the purpose of bringing his land into cultivation, and if the wind rises and causes the flames to spread, and communicates the fire to his neighbor’s land, and the crops and grass of the latter are injured and destroyed, that no action will lie, without some proof of negligence or misconduct. on the part of the person building the fire. In that case the proof showed that it was a hot and dry time, and the wind commenced blowing violently, as in the case under consideration, and spread the fire until it communicated to>
The question in this case is reduced, then, to the proposition whether the defendant was guilty of negligence in absenting himself temporarily, on the day of the fire, without making some provision for watching the burning logs and fallow. Was he hound to remain there, to see whether the wind arose and blew, and if possible thus prevent the spreading of the conflagration ; and was he guilty of negligence in leaving as the evidence shows that he did P
In order properly to appreciate the true state of the case, it should be observed that at the time the defendant did leave there were no indications of this sudden change in the weather—no manifestations that it would be windy and tempestuous ; or that a storm was brewing; or that any imminent danger was approaching, hi or is there any thing in the case evincing that the defendant could have prevented the fire from extending, even if he had been personally present. If he had been at home I think he would not have been required to keep a constant watch upon the fire, night and day, for fear that a wind might arise and scatter it, to the destruction of his neighbor’s property. This is not a case of such
If the defendant would not be liable in the case put, there is no good reason why he should be liable because Jhe was absent for a brief period, in the day time, when there was no probability or prospect of danger.
In Stuart v. Hawley, the learned judge in his opinion says : that the want of attention on the part of the defendant did not help the plaintiff’s case. And this is the most that can be said of the defendant’s absence.
I think, therefore, that the fact that the defendant left home on the day of the fire and was absent when it occurred, does not show negligence and carelessness on his part, and that he was not liable. He had no reason to apprehend any such sudden change as ensued, and should not be held responsible for it. Certainly not, without some proof that his presence - might have prevented the injury which happened to the plaintiff. While negligence is usually a question of fact, for the jury, yet when the undisputed facts show that' the defendant is guiltless of all blame, the case resolves itself into a question of law, for the determination of the court upon the evidence introduced. The judge upon the trial properly
The order of the county court, granting a new trial, must therefore he reversed, with costs.
leclclmn, Miller and Ingalls, Justices.]