83 Iowa 270 | Iowa | 1891
The fire started in a field about one hundred and sixteen feet from the railway track. No other fires, or persons setting fires, were seen near there on those days. We think no jury or disinterested person could or should hesitate to find that the fires were set by the defendant’s engines. As against such 'a showing, a jury should not allow suppositions or conjectures that, the fires might have occurred in some other way, to defeat a finding of the fact as it appears from the evidence. It is said there was no evidence “showing how hard the wind blew, in what direction it was blowing, or that there was any wind at all; ” that there was no-evidence “to show that an engine can possibly set a fire at this extraordinary distance from the track; ” or “that the fires might not have been set by some one else.” The evidence, however, did show a cause or means for the fire to originate; and the occurrence-of the fires in point of time with the passing engines, in the absence of all evidence as to the extent and course of the wind, would justify a belief that the con-. ditions in these respects were favorable. It is a matter, too, of common knowledge that sparks and cinders from engines will go a distance of one hundred and sixte'en feet or more; and, in the absence of any other cause, a belief that fire originated therefrom may be-, well founded.
“Q. What was its reasonable maiket value after the fire cut through it, and burned it up, per acre, if you know? A. I don’t think it was ,of any value.”
This testimony was given under objections as to its competency, and the objections are urged in connection with the assignment as to the instruction refused. It is perhaps fair to say that the instruction considered, in connection with the evidence on which it was based, gave to the jury a rule that the measure of damage was the difference between the value of the timber before and after the fire. The appellant, however, argues the case on the theory that the instruction authorized the jury to consider the damage in connection with the farm. We think neither the evidence nor the instruction authorized such a consideration. No reference is made to the farm in the testimony or instruction. The evidence was as to the value of the timber land, and the instruction is certainly not broader. The plaintiff’s damage is not limited to the value of the timber for cord-wood. It was growing timber, being kept for its growth, and had a value in that respect. It was a part of the realty, and its loss affected the value of the realty. It is manifest that the plaintiff suffered no less damage than the difference in the value of the timber land before and after the fire. The testimony was properly directed to such a measure of damage, and the instructions are in harmony with that view. In Montgomery v. Locke, 13 Pac. Rep. (Cal.) 401, it is stated that the means by which to determine the damage occasioned by the removal of forest trees, having no value except
We think the evidence and the instructions given are-such that appellant should not complain. Aeeibmed..