28 P. 1134 | Ariz. | 1892
This action was brought by Samuel C. Rees and the Springfield Eire and Marine Insurance Company, of Springfield, Massachusetts, against the Prescott and Arizona Central Railway Company, to recover damages for the destruction of a certain house, with its contents, situated near the track of said railway company, and alleged to have been set on fire through the negligence of said railway company, in that its employees negligently permitted cinders and sparks to escape from one of its engines and ignite said house, and thereby destroy it, with its said contents. The said Rees based his right of recovery upon his ownership of the property destroyed; and the said insurance company, by virtue of its right to be subrogated to the right of said Rees in any amount Rees might recover in the action, to the extent of the amount of a certain policy of insurance held by said Rees in said insurance company, and paid to said Rees after the destruction of said property as aforesaid. The case was tried in the court below by a jury, and a verdict found for plaintiffs, (appellees herein). Prom the order overruling a motion for a new trial, defendants appeal.
One of the issues raised by the pleadings was the ownership of the house. The answer denied that Rees was the true owner, and set up that Rees had, without any authority or license therefor, built the house upon land owned by the Atlantic and Pacific Railway Company; said company becoming thereby the owner of the house. At the trial appellant sought to introduce in evidence the depositions of J. A. Williamson, land commissioner of said Atlantic and Pacific Railway Company, and of J. W. Donnelly, a clerk in the land department of said company, in substance to the effect that the land upon which the house in question had been built was owned by said Atlantic and Pacific Railway Company, being a part of its grant of lands obtained by act of Congress dated July 27, 1868, and that said house had been erected by said Rees upon said land without license or authority therefor from said railway company. This evidence, as well as the testimony of
Other questions presented by the bill of exceptions, relative to the introduction or exclusion of evidence by the trial court, we pass over, inasmuch as we have, in our judgment, disposed of the most important question, and have found therein error sufficient to reverse the judgment of the court below.
As to the instructions given by the court, we deem it unnecessary to say more than that they present an entirely new doctrine of comparative negligence, by charging, in effect, that if both parties to the suit were guilty of negligence in the premises, then the negligence of the one party was to be balanced as against the negligence of the other, and the jury were directed to find for the party least guilty in this respect; and also to express our disapproval of such or any doctrine of
Gooding, C. J., and Kibbey, J., concur.