25 Kan. 210 | Kan. | 1881
The opinion of the court was delivered by
Defendant in error brought his action to recover for the destruction of his property by a fire set by plaintiff in error to prairie grass. A trial was had, and verdict returned for defendant. On motion, a new trial was granted,' and upon the second trial plaintiff obtained a verdict and judgment. To reverse this, we have before us this proceeding in error.
It is alleged, first, that the court erred in granting a new trial. The ground upon which a new trial was granted was newly-discovered evidence. The affidavits of the moving party showed that he had made inquiry of all whom he thought likely to have knowledge of any facts material to his case, and had not ascertained that these witnesses knew of certain facts until after the case had gone to the jury. It appeared from' counter-affidavits that these witnesses lived within a mile or two of plaintiff, that they frequently passed his house, and under such circumstances that he could not have been unacquainted with them, or ignorant that they were in the neighborhood at the time of the fire. Now it is plain that if the court had refused the new trial, the case of Smith v. Williams, 11 Kas. 104, would be an authority directly in point to sustain such ruling. But it has been frequently held that where
For similar reasons, his ruling upon the question of costs must be sustained. We have nothing to add to the remarks ■ made upon this question of costs on new trial in the case of N. C. C. M. & S. Co. v. Eakins, 23 Kas. 318. But we do not know that the victorious party in this case was without fault. It would seem to us, from all the insight we have into the
We pass now to the questions raised upon the second trial. The action was brought under chapter 118 of the Compiled Laws of 1879. A similar statute was before this court for consideration in Emerson v. Gardiner, 8 Kas.455, and in that case it was said, “ If fire is set to woods, marshes or prairies, then there can be a recovery under the statute, and the test of liability will be, did the defendant set the fire?” Of course, this “setting on fire” must be the direct intentional act of the defendant, as explained in the M. K. & T. Rly. Co. v. Davidson, 14 Kas. 349, and not an unavoidable accident. So far, then, as the liability of the defendant is concerned, the simple question was, did the defendant intentionally, and not in firing against fire, set the prairie on fire? If he did, and that fire destroyed plaintiff’s property, he is liable. No element of willfulness or negligence enters. He may not have thought of injui’ing his neighbor, and he may have been guilty of no negligence. Yet if he intentionally set the prairie on fire, he must pay for the damage done by such fire. This question the court placed distinctly before the jury in its charge. They found against the defendant. The testimony will sustain while it may not compel such a conclusion. Beyond question, he started a prairie fire on the morning of the day that this damage was done. He admits that. This was in close proximity to a house he was building. This fire he claims to have fully extinguished. Later in the morning the grass is found to be on fire a short distance off, and, spreading with great rapidity, does the damage. Now the theory of the plaintiff was, that the fire started by defendant was nof fully extinguished, but ran along the grass unnoticed by him for a while until, driven by the rising wind, it spread into a large and devouring flame;
Taking the case as a whole, we see no material error, nothing prejudicing the substantial rights of the defendant, and therefore the judgment must be affirmed.