119 Ark. 143 | Ark. | 1914
(after stating the facts). It is contended by counsel for the defendant that there is not sufficient evidence to support the verdict. The testimony on the part of the plaintiff shows that some section men were engaged in (burning off the right-of-way of the railroad on the Friday before the fire occurred. This the railroad company was legally entitled to -do. The liability of the defendant to the plaintiff for the destruction by fire of its pasture and fence depends, first, upon the proof whether it resulted from its act, and, second, whether the fire resulted from the negligence of the defendant or its servants in burning off its right-of-way. What would constitute such negligence or want of care and prudence as would render the railroad company liable for the destruction by fire from its act in burning off its right-of-way depends upon the circumstances as they existed at the time. See Bizzell v. Booker, 16 Ark. 314.
The evidence of two of the tenants shows that the section'crew was also engaged in ibnming off the right-of-way on Saturday ¡afternoon just 'before the fire occurred and that when they saw them burning off the right-of-way the fire had not escaped from the right-of-way, and that there was no other fire burning in the neighborhood. From these facts the jury might have inferred that the same section crew was still engaged in burning off the ■right-of-way of the defendant company on Saturday.
It is insisted by counsel for the defendant that the court erred in permitting the plaintiff Wilson to testify as to the reasonable expense of replacing the fence and also in instructing the jury that .a part of the measure of damages for the destruction of the fence would he the reasonable cost of replacing the fence as it was at that time. -Counsel for the defendant insists that the measure of damages where permanent improvements are destroyed, is the difference in value between the farm without the improvements and the farm with the improvements, and we are of the opinion that counsel is correct in this. But it does not follow that the judgment should be reversed for that reason. The only issue of fact in the case was whether or not the defendants’ servants were negligent in allowing fire to -escape from its right-of-way to the premises of the plaintiffs and destroy their fence and pasture. The jury returned ia verdict for the plaintiffs for $160. The -case was tried on the 7th day of June, 1914. The fire occurred on the 23d day of November, 1912. The plaintiff Wilson testified that the reasonable value of the pasture for the remainder of that season was $150. -Other evidence shows that the pasture contained peas, kafir com, bermuda and other grasses.' There is no attempt made to contradict the testimony of the plaintiff Wilson as to the reasonable value of the pasture for the remainder of the season, and we think his testimony in this respect might have been accepted -by the jury as undisputed. The court told the jury that the plaintiff should be allowed 6 per cent, interest on the damage rail owed from the time of the fire until the date of the trial. Six per -cent interest on $150 'for the period of time from the date of the fire until the date of the trial would amount to about $10. Therefore, it may be said that the undisputed evidence shows that the plaintiff was entitled to -the amount of damages allowed him by the jury.
It is also claimed by counsel for the .defendant that the court erred in instructing the jury that they might take into consideration the rental value of the pasture for the remainder of the season. We do not think the court erred in this respect. In the first place, the owners of the land and the tenant, Wilson, were all joined as plaintiffs in the suit, and, in the .second place, the plaintiff, Wilson, had a five years’ lease on the place, only one year of which had expired at the time the fire occurred. Therefore, the court properly told the jury to take into consideration the reasonable rental value of the pasture for the remainder of the season.
We find no error in the record and the judgment will be affirmed.