173 A. 481 | Pa. Super. Ct. | 1934
Argued April 25, 1934. This case is before the court on an appeal from the refusal of the learned court below to enter a judgment for the defendant n.o.v.
The plaintiffs and defendant were owners of adjoining tracts of land, situate in Ross Township, Allegheny County. The plaintiffs charge the defendant with setting fire to underbrush on a windy, dry day, and recklessly and carelessly failing to tend and guard the fire, which extended over on the plaintiffs' lot and *575 resulted in the destruction of their garage, trees and shrubbery.
The appellant in his argument submitted two questions for our consideration: 1. Was there any evidence of negligence on the part of appellant sufficient to submit to the jury? 2. Was it error to admit in evidence the act of assembly providing for the punishment of the originators of fires?
According to the plaintiffs' testimony, the defendant entered on his vacant land shortly after four o'clock in the afternoon of April 7, 1932, and began raking together dry grass, leaves, etc. Mrs. Metzger said that five or ten minutes thereafter she saw a fire on his land, which she located as about ten feet from their garage; the defendant was engaged in raking the dry material into the fire; that she returned to sweep her hall and about five minutes later she saw the hedge was burning. The fire, aided by the wind, was carried immediately to the garage.
The plaintiffs were not required to show, by direct evidence, the cause of the fire. It was sufficient to prove, by circumstantial evidence, that the natural and probable result of the defendant's actions or omissions was the plaintiffs' loss: Propert v. Flanagan et al.,
Taking into consideration the combined circumstances that the fire started within a few moments after defendant arrived, that he was seen feeding it, that no other person was nearby, and the absence of any other reasonable explanation of its origin, we think the jury, under this fairly strong, circumstantial evidence, was justified in finding a verdict in favor of the plaintiffs. See Brown v. Schock,
As to the second position, the record discloses that no exception was taken to the admission of the act of assembly complained of by the defendant. This appellant was required to do if he desired this court to specifically consider an assignment of error based on the alleged error: Fisher v. The Leader Pub. Co.,
Judgment of the lower court is affirmed. *577