111 Mich. 15 | Mich. | 1896
The declaration contains three counts. Upon the trial the plaintiff abandoned the first two counts, and recovered upon the third. The third alleges that the defendant was negligent in “ permitting a quantity of dry grass, rubbish,, and other combustible material to be and remain upon its right of way; in causing a fire to be started in said grass and rubbish, and permitting said fire to pass and escape from its right of way to the adjoining lands of the plaintiff.” The fire occurred July 16th. The combustible material which was charged to have accumulated consisted of grass and dead leaves which had accumulated among low huckleberry bushes along the right of way. The plaintiff based his right to recover upon the accumulation of the combustible material. While there was testimony from which it might be inferred that the fire caught from an engine, it is apparent that the jury were not agreed upon the origin of the fire. After they had been out some time, they returned into court, saying they could not agree. The judge refused to discharge them, and was about to send them back for further consideration, when the following colloquy took place:
‘ ‘ Juror: It is not necessary that we should find that that fire started from that engine, is it,—from the cars running through there?
“ The Court: Not if the damage occurred because of the negligence of the railroad company.
‘ ‘ Juror: It don’t make any difference where the fire originated or started,—what was the cause of the fire ?
“ The Court: Not if it occurred because of the negligence of the railroad company.
“ Juror: That is what I thought.
“ The Court: If there is nothing further, you gentlemen may retire.”
The instruction, in substance, said to the jury that the origin of the fire was of no consequence, but if they found that, on account of the dry weather, the defendant was negligent in not removing the dry grass and leaves, they should find for the plaintiff, although the defendant
Other questions are raised, but, as they are not likely to occur upon a new trial, we need not discuss them.
Judgment reversed and a new trial ordered.