16 Mo. 508 | Mo. | 1852
delivered tbe opinion of tbe court.
This was an action begun in 1847, by Martin, in bis lifetime, against Miller, for damages. Tbe declaration contained two counts, both at tbe common law.
It appears that Martin owned a farm about half a mile north of tbe defendant’s, and between them there was an open prairie. Tbe defendant bad begun to plow a field, preparatory to tbe sowing of oats, but, in consequence of. tbe quantity of stubble and other such matter upon tbe ground, be was obliged to desist. In order to remove tbe obstacles which impeded bis plowing, be put fire to them. There bad been run, sometime before, around tbe land thus fired, furrows, making tbe width of a rod. Tbe defendant and a servant boy remained to watch tbe fire. The wind rose high about tbe middle'of tbe day, although it was calm in tbe morning. In tbe absence of tbe boy, who had gone for a drink of water, the fire escaped and was communicated to tbe plaintiff’s fencing and burned a quantity of bis rails. The court refused an instruction asked by tbe defendant, to tbe purport, that, if be had used due diligence in firing bis land, and, notwithstanding, tbe fire had escaped and burned tbe plaintiff’s rails, without tbe least fault or neglect on bis part, they will find against the plaintiff. And, at tbe instance of the plaintiff, instructed tbe jury, that if tbe defendant himself, or by another, set out
Some confusion was produced in the argument of this cause, by reading cases in which the only point involved was the form of the action for the injury committed; whether it should be trespass vi et armis, or an action on the case. The propriety of the application of the principle, whose aid is sought to shield the defendant from damages for the act complained of, does not depend on the circumstance whether the injury was direct or consequential; it is equally applicable, whether the remedy for the alleged wrong is trespass or case. It is conceded, that this is an action at common law, uninfluenced by any statutory provision.
The case of Guille v. Swan, 19 John. Rep. 381, was an action against an aeronaut, for an injury done to a garden by the crowd, which was attracted to the balloon at its descent. The court said that, although the ascending in a balloon is not an unlawful act, yet it is certain that the aeronaut has no control over its motion horizontally; he is at the sport of the winds, and is to descend when and how he can ; his reaching the earth is a matter of hazard, and he did descend on the premises of the plaintiff below, at a short distance from the place where he ascended. Now, if his descent, under such
The case of Turbervil v. Stamp, 1 Salkeld, 13, was for negligently keeping fire in a close, whereby the plaintiff’s grass was consumed. After verdict for the plaintiff, it was objected that the party was liable only by the custom of the realm for fire in his house or curtilage, which are in his power.
The custom or law, referred to in the above case, was repealed by Stat. 6 Ann, chap. 31, which enacts, “ that no action shall be maintained against any one in whose house or chamber any fire shall accidentally begin.”
The other Judges concurring, the judgment will be reversed and the cause remanded.