15 S.D. 107 | S.D. | 1901
This is an action for damages. Verdict and judgment in favor of the plaintiff, and the defendant appeals. At the commencement of the trial the defendant obj ected to the introduction of any evidence on the part of the plaintiff, upon the ground that the complaint did not state facts sufficient to constitute a cause of action. The objection was overruled, exception taken, and the defendant now insists that the court erred in admitting the evidence. The complaint in this action is as follows: “ (1) That, on the 10th day of April, 1899, and prior thereto, plaintiff was the owner, and in possession, of 150 sheep. (2) That, on the 6th day of April, 1899, said defendant intentionally, negligently, and carelessly kindled a fire on his land, near plaintiff’s farm, and allowed the same to burn continuously from the said 6th day of April, 1899, until the.ioth day of April 1899, when said fire spread therefrom, burning over several hundred acres of prairie, including land adjoining plaintiff’s farm, destroying and consuming said sheep, to plaintiff’s damage in the sum of $750, no part of which has been paid. Wherefore, plaintiff demands judgment against said defendant for the sum of $750, together with the costs and disbursements of this action.” It is contended on the part of the appellant that there is no allegation in the
There was evidence on the part of the plaintiff tending to prove that on the 6th day of April, 1899, certain straw stacks standing on a quarter section of land owned by the defendant were set on fire intentionally, and some evidence, at least, tending to prove that the defendant .was. the party who set the fires- The .evidence further tended to prove that the straw stacks continued to burn until about the 10th, when the fire spread .over a portion of the stubble .in which the stacks stood, and to the adjoining prairie, on which the plaintiff had a flock of sheep, a number of which were burned by the fire, caused partly by their inability to escape by reason of wire fences. It is contended, on the part of the appellant, that there is no evidence that the defendant was guilty of negligence in-permitting the fire to escape from his own land; but the fire in this case was set in direct violation of the statute. Section 2392, Comp. Taws, provides: “If any person or persons shall set or cause to be set on fire any woods, marsh or prairie or any grass or stubble,lands in the months of September, April, May or June, such person or persons -shall also be liable in a civil action to any person .or persons damaged by such fire to the amount of such damages.” Theisfraw stacks were set.on fire in April, in what is termed ,a high, stubble, through which a header had been run. The, act, .therefore, of setting the fires at that
It is further contended by appellant that setting .fire to the straw stacks, although standing.in a stubble is not setting fire to the stubble. This certainly is a very strained construction of the statute. As well might a defendant accused of arson claim that he only set fire to certain combustible materials which were placed in the building burned, and that he did not set fire to the building. It is difficult to perceive how a party could more effectually set fire to stubble, than by setting fire to a straw stack in the stubble not protected by a fire .break, as provided by Section 2393. ■ ...
The defendant has called our attention to a number of .authorities from Kansas and Iowa, which, he claims, sustain his position that the provisions of Section 2392 are not applicable to -this case. In the case of Brunell v. Hopkins, 42 Iowa, 429, which counsel for the appellant claims is the leading case upon this subject; the stat
It will be noticed that in this statute the terms “marsh, grass, and stubble lands” are omitted, and that there is no provision m the section that the party shall be civilly liable for the damages that may be caused by any such fire. The fact that the legislature of this state has made the addition to our statute before referred to shows the intention of that body to make the provisions of our statute much more sweeping than those of the state before ’ referred to. and, in view of the disastrous consequences resulting from fires in this state, it becomes the duty of the courts to so construe the statute as to accomplish the object the legislature evidently had in view, so far as consistent with the rules of construction.
It is contended on the part of the appellant that the plaintiff was guilty of contributory negligence in allowing his sheep to run at large, without being in charge of a herder, upon prairie land Owned by another. But this court cannot say, as matter of law, that allowing sheep in that section of the country to roam over the prairie without a herder upon land owned by a third party necessarily constitutes contributory negligence. That was a question of fact for the jury, under proper instructions. The court instructed the jury that: “On this question, as to whether the plaintiff is guilty of contributory negligence, and on this question alone, the burden is upon the defendant. There will be no presumption that the plaintiff was guilty of contributory negligence; but it is incumbent upon the defendant to prove by a preponderance of the proof, that the plaintiff is guilty, or was guilty, of contributory negligence on his part, and that that was the proximate cause of the loss. So that on the
On the motion for a new trial, one of the grounds for the same was newly discovered evidence; and the appellant contends that the court erred in denying this motion. It appears from the affidavits upon which the motion was based that the defendant resided upon a quarter section of land about a mile distant from the quarter section on which the fires were started, and that some time in the latter part of the month of March he leased the quarter section upon which the fires were started to his son, for the season of 1899, and that this son set -fire to the straw stacks in controversy, but left the state about one month before the trial of the action, without communicating to his father the fact that he so set the fires, and
The judgment of the circuit court and the order denying a new trial are affirmed.