45 Pa. Super. 476 | Pa. Super. Ct. | 1911
Opinion by
For the reasons given in the opinion this day filed in the case of John H. Hunter v. Penna. R. R. Co., ante, p. 468, we would affirm the judgment in this case were it not for the clear, precise and convincing testimony that this plaintiff was guilty of contributory negligence. He saw the fire soon after it started on defendant’s right of way on the morning of October 12, 1908, and he did not make the slightest effort to extinguish it or to induce anybody else to extinguish it, until the fourteenth, the day the damage was done to his property. His excuse for not extinguishing the fire, or attempting so to do, was that on October 12, he was driving a young team and could not leave them. This excuse is idle in the face of the fact that the fire was near to his property and he was only a few minutes drive from his home and could easily have driven his team back into the barn, and could have at least made an effbrt to put out the fire. In our opinion it was error for the court to submit to the jury the question of his negligence. We think a jury ought not to have been allowed to draw any other inference from his conduct than that of contributory negligence, and the court erred in not directing a verdict in favor of the defendant on that ground. This should have been done on plaintiff’s own testimony. Even though some one else is guilty of negligence in allowing a fire to start, a man cannot stand idly by and allow it to spread to his property and destroy it, without making a reasonable effort to put it out. For the above reasons we sustain the assignments of error as to the negligence of the plaintiff. .
Judgment reversed.