The opinion of the court was delivered by
Thе principal question in this case is, whether .there was any evidence introduced upon the trial tending to show that thе plaintiff below was guilty of contributory negligence. The evidence disclosed, inter alia, that plaintiff’s orchard, where his apple trees were standing, was situate adjoining the right-of-way of the railroad company, about one half-mile еastwardly of Westphalia station, in Anderson county; that on the morning of the fire (September 17,1881), before twelve o’clock m., two trains passed westwardly on the railroad by the orchard; that one of these was a passenger train and the other a freight train; that the fire started from red-hot coals or cinders about as large as walnuts, on the rаilroad between the rails, or from a little pile of cinders eight or ten feet outside of the rails; that at the time of the fire the weather and- vegetation were dry, and a high wind was prevailing; that the trees in the orchard were all hеavily mulched. Some of the witnesses testified that eight or ten bucketfuls of manure were around each tree, and also that many of the trees were wrapped with grass, straw, and stalks; that some of the mulching was put around the trees in the spring of 1880, some in the winter of 1881, and some about two weeks before the fire; that the orchard was covered with оld grass
Among other instructions prayed for, the railway company asked the court to charge the jury that if plaintiff below was guilty of contributory negligence, contributing directly to thе injuries complained of, he could not recover. This instruction and all other instructions directing the attention of thе jury to consider the contributory negligence of plaintiff below, were refused.
If there was any evidence upon which to base these instructions, the court committed error, because in its general charge it wholly ignored the matter of contributory negligence; Whether a party is. guilty of negligence, or not, is a question of fact for the jury, and nоt a question of law for the court to decide, when the evidence tends to establish such negligence. In view of thе evidence of the manner in which the trees in the orchard were wrapped, of the character of the mulching thrown around them, and of the old grass and corn stalks left in the orchard, the question whether the plaintiff below was guilty of negligence, or not, should have been submitted to the jury. It is apparent from the findings, that the jury returned the verdict against thе railway company mainly because the company had not kept its track and contiguous land free from weeds, grass and other material likely to be ignited by coals dropped or thrown from its engines. But if the plaintiff below was еqually guilty in failing to use reasonable means to avoid the destruction of his property, 'his failure to do so would alsо be negligence; and if he were thus guilty of like
Counsel of plaintiff below alleges that the instructions upon the question of contributory negligence are confined solely to the mulching of the trees, and then argues that as the plaintiff used his land in a natural and proper way for the purposes for which it was adapted, there was no evidence tending to show negligence on his part. Counsel misinterprets the record. Some of the instructions refused were as fоllows:
“9. If the jury find from the evidence that the plaintiff placed a large amount of straw and other dry and inflammable mаterial about his apple trees and permitted such material to remain about his trees, and knew that the railrоad track was near, and that defendant’s trains were passing over its road every few hours, and knew that his orchard wаs so near the-track as to be exposed to great danger from fire in consequence of this inflammable material placed there by plaintiff; and if said dry straw and other inflammable material contributed directly to such injuries, then the plaintiff cannot recover in this action.
“ 10. The plaintiff cannot recover for property negligently burned by defеndant, if his o^yn negligence contributed directly to the injury.
“11. It is a circumstance the jury may consider as going to prove сontributory negligence, that plaintiff placed straw and other dry and combustible material around his apple trees and permitted it to remain around them for a long time, and up to and at the time of such injury, with a full knowledge that the railroad was within a few rods of his trees, and that his orchard in that condition was greatly exposed to injury by the escaрe of sparks from the passing engines on the track of defendant’s road.”
We do not in any way intend to intimate that thе mulching and wrapping by plaintiff below of his apple trees, or his failure to remove from the orchard the old grаss and corn stalks, was per se and as a matter of law, negligence. But upon the introduction of evidence tending to prоve these facts, a question of contributory negligence was thereby presented, and this question of fact was fоr the jury to decide.
The judgment of the district court will be reversed, and the cause remanded.