80 Iowa 338 | Iowa | 1890
— It is important that we keep in view the issues presented for trial by the pleadings. The petition, in brief, says that the defendant set out the .fire, and unlawfully allowed it to escape beyond his control, whereby his (plaintiff’s) stacks were burned. The defendant denies that he did so. Both the testimony in the case, and the instructions of the court, are directed to the facts thus put in' issue. The court instructed the jury that if the defendant set out the fire, and allowed it to get beyond his control and burn the stacks of the plaintiff, he was liable for the damage. Appellant complains of this because it omits the element of negligence, and claims as the rule that if defendant set the fires to preserve his own property from destruction, and was not guilty of actual negligence, he is not liable. We shall consider the questions-of negligence, and the right to protect his own property, separately, as they are really so argued, and should be so considered.
Reversed.