137 Wis. 426 | Wis. | 1909
A man may lawfully bum rubbish or brush upon his own land if he exercises that prudence in the starting of the fire and the management of it after it is started which the rules of ordinary care demand. He is using a dangerous agent, and when there is much inflammable material on the ground, and the wind is strong in the direction
Many minor errors are assigned, all of which have been examined and the more important of which will be noticed. It is said that the plaintiff was guilty of contributory negligence, as matter of law, because he was working in his own field some eighty rods distant from the starting point of the fire and saw the smoke during the forenoon, but did not go to the place of the fire or offer assistance until about the time when it crossed the highway. This question was clearly one for the jury. The evidence on the subject was not so conclusive as to warrant the court in saying that the- rules of ordinary care required him to do more than he did.
Upon the cross-examination of the plaintiff the court permitted the defendants to ask a number of questions concerning the custom of farmers in that locality with reference to' burning off grass and brush at that time of year. At a later stage of the case the court struck out the evidence, and this ruling is assigned as error. On examination of the testimony so stricken out we find that, while plaintiff admitted that there was a custom in an early day to burn over both pasture and timber land, he directly denied that there was any such custom at the time of the fire and for some years prior thereto, where, as in this case, pasture and timber joined. Irrespective of the question, therefore, whether evidence of custom would he competent, there was no prejudice to the defendants in the striking out of the testimony.
One of plaintiff’s witnesses, named Grosskratz, who was a
Errors are assigned because the plaintiff was allowed to testify that the timber was good timber, also that he was keeping it for his own use, and because the defendants were not permitted to fully cross-examine the man Belcher when called as a witness for the plaintiff. The first two of these assignments of error are trivial in their nature, and the rulings could not be prejudicial, even if it be admitted that they were technically erroneous. As to the alleged improper limiting of the cross-examination of Belcher, it is sufficient to say that he was afterwards called and fully examined as a witness for the defendants, and was not an adverse or unwilling witness, and that the defendants then had full opportunity to examine him upon the subjects as to which they desired to cross-examine him.
A large number of instructions were requested by the defendants, all of which were refused, and these rulings are now assigned as error. We shall not consider the instructions requested in detail. The trial court gave the jury a comprehensive and substantially correct charge, placing before them the legal principles which should govern the deliberations, without repetition and with commendable clearness and brevity. So far as the requested instructions stated correct principles of law applicable to the ease they were included in the charge given. A number of these requested instructions touched upon the question of a supposed change in the velocity or direction of the wind during the progress of
Various exceptions bring up the question whether there was error in the rulings of instructions to the jury on the question of the measure of damages. The plaintiff, after stating the kind of timber in his wood lot and that twelve acres of the timber was entirely killed by the fire and the other eighteen acres blackened, was allowed to answer, against objections, that in his opinion the damage to the timber was about $300. On cross-examination he stated that he did not count the trees, and that his statement of damages was not based on measurement or accurate inspection, but was a guess. Thereupon the defendants moved to strike out plaintiff’s answers as to the value of the timber burned, but the motion was overruled. On redirect examination he testified that the land with the timber on it prior to the fire was worth about $35 per acre and after the fire about $20 per ■acre. One Baker, who was a farmer and a witness called by the plaintiff, testified to an examination of the timber after the fire and that about one third of the trees were dead, and that in his opinion the land was worth $20 to $35 an acre before the fire, and after the fire $10 less an acre. Several witnesses for the defendants testified to an examination of the woods just prior to the trial and that in their opinion the damage to the timber by fire was about $15 in all.
The foregoing constituted all the evidence that was given
By the Court. — Judgment affirmed.