54 P. 200 | Or. | 1898
Lead Opinion
after making the fo'regoing statement of the facts, delivered the opinion of the court.
The notice of appeal contains several assignments of error, but they present practically only two questions : First, error of the court in overruling defendants’ motion for nonsuit, made at the close of plaintiff’s testimony; and, second, error of the court in ruling and instructing the jury, in substance, that the plaintiff was entitled to recover in this action if it appeared that the fire which consumed his property was the result of the carelessness and negligence of the defendants in not caring for and extinguishing the fire contained in the ashes taken from the engine, although they were not negligent or careless in taking the ashes from the engine, and placing them upon the ground in and about the straw and stubble.
Now, no negligence can be imputed to the defendants from the mere fact that ashes, which necessarily contained some fire, were taken from the engine and placed upon the ground. They were engaged in a lawful business, and had a right to use fire in the operation of their engine, and to dump the ashes on the ground. Indeed, there was no other way of removing them, and hence no action lies for doing so, unless negligence appears either in dropping them at a place where the fire which might be contained therein would be likely to communicate to inflammable material, and thus spread over the adjoining field, or, after dropping them at a suitable and proper place, in failing to exercise due care and caution to extinguish the fire therein. If, on account of negligence in either of these particulars, the plaintiff’s property was consumed, the defendants would be liable, but they are separate and distinct grounds of liability. The proof of one will not justify a recovery on a specified allegation of the other. Every person may lawfully set out fire on his own premises for the purposes of husbandry, or for any other lawful purpose, and he is not liable for an injury to his neighbor resulting therefrom unless he is guilty of negligence in setting out the fire at an improper or unsuitable time, or in not using reasonable care and diligence to prevent it spreading and doing injury to the property of others. Hewey v. Nourse, 54 Me. 256; Higgins v. Dewey, 107 Mass. 494 (9 Am. Rep. 63). But it has been held that an allegation that a defendant negligently and carelessly set fire to inflammable material on his own premises, which communicated to and consumed the property of the plaintiff, is insufficient to admit proof or sustain a recovery on the ground of negligence in allowing the fire to escape or
The averments of the complaint are somewhat involved, and it is not entirely clear whether the pleader intended to confine the charge of negligence to the operation of the engine by taking and permitting the fire to be taken therefrom, and placed on the ground in and among inflammable material, and by that means allow and permit it to burn over the straw and stubble and into the field of the plaintiff, and consume and destroy the property described in the complaint, or whether he intended to charge both negligence in the operation of the engine in the particulars referred to and in failing to extinguish the fire after it had been taken from the engine. But it seems to us the better construction of the pleading is, and its averments, omitting all surplusage and unnecessary repetition, are, that the defendants, while operating an engine, did carelessly and negligently, and without due or proper regard or caution, take and permit the fire to be taken therefrom, and placed upon the ground in and about the straw and stubble, and thereby — that is, by that means, or in consequence of that — allowed and permitted such fire to spread and burn over and through the stubble and straw into the field of the plaintiff, and burn up his property. The allegation that the fire was negligently taken and permitted to be taken
If the complaint had alleged that the defendants negligently omitted to extinguish the fire, and by reason of such negligent omission it was communicated to the stubble, and carried or spread into the plaintiff’s field, and destroyed his property, evidence that there was fire in the ashes some time after the defendants left the premises would perhaps have been sufficient to have carried the case to the jury; but the complaint does not charge the defendants with negligence in this particular, but in taking the fire from the engine, and placing it on the ground in and among inflammable material. In other words, the act of negligence charged is in placing the fire on the ground at an improper and unsuitable place, where it was likely to spread, and destroy the plaintiff’s
Reversed.
Rehearing
delivered the opinion.
It is now insisted that the court was in error in assuming that there was no evidence of negligence in the operation of the engine, although at the hearing such was practically conceded to be the fact. The only question in the case was, whether the complaint charged negligence in not exercising due care and caution in caring for the fire after it had been taken from the engine and placed upon the ground, so that whatever was said in the opinion about negligence in the operation of the engine was in accordance with the theory upon which the case was submitted, and, if a mistake, could not in any way affect the result. Counsel in their petition for a rehearing expressly agree with the court in its construction of the complaint, and, this being so, it necessarily follows that the judgment of reversal must stand, because the plaintiff was permitted to recover upon a ground of liability not alleged.
It is also requested that the cause be remanded with permission to the plaintiff to amend his complaint. The practice in such cases, when a cause is remanded, as in this case, “ for such further proceedings as may be proper not inconsistent with the opinion,” is indicated in Powell v. Dayton etc. R. R. Co., 14 Or. 22 (12 Pac. 83), and State ex rel. v. Metschan, 32 Or. 372 (53 Pac. 1071).
Rehearing denied.
Dissenting Opinion
I am constrained to dissent from the conclusion of my associates herein, as I am strongly impressed that by reasonable intendment and construction the complaint states a cause of action for negligently and without due caution allowing and permitting the fire to spread and escape, as well as in carelessly and negligently taking it from the engine, and placing it upon the ground in and about the straw and stubble in the first instance. Such a construction would affirm the judgment.