54 P. 150 | Or. | 1898
delivered the opinion.
This is an appeal from a judgment of the circuit court of Union County, given in favor of the plaintiff, in an action brought to recover damages for injuries alleged to have resulted from defendant’s negligence in burning grass and other combustible material on or near its right of way. The complaint is : That on October 9, 1896, the plaintiff was entitled to and in the possession, as the trustee of an express trust for and on behalf of James Raymond, of a 3,500-acre tract of land adjoining the defendant’s right of way in Union County, together with all the personal property kept and used upon such premises, including 21% tons of hay, a Randolph header, and an Os
A few days before the time alleged in the complaint, he caused to be plowed two parallel strips of land a rod wide and about twenty feet apart along and parallel to the defendant’s track as a firebreak, to prevent such fires as might be caused by defendant’s engines from overrunning his land. At this time that section of country was dry, and the land in possession of plaintiff adjoining the right of way, being dry, peaty soil, covered with grass and weeds, was very susceptible to fire. Notwithstanding these conditions, the section hands of defendant, on the ninth of October, set fire to the grass, weeds, and other combustible material on the strip of land between the two firebreaks referred to for the purpose of burning the same off, and by this means to lessen the danger of accidental fires set by its engines escaping onto the adjoining land. They began their work at the south line of the premises in question, and proceeded north, keeping the fire under control until they reached the wagon road, when it escaped over and across the road, and commenced burning in the grass and weeds on the plaintiff’s land north thereof. About this time plaintiff’s foreman, fearing that the fire had got beyond control of the defendant’s servants, rode out to where it was burning, and after consultation with them it was thought advisable to have a firebreak plowed between the fire and the land in plaintiff’s possession to prevent the further progress of the fire. In pursuance of this understanding, the foreman directed one of the employees on the ranch to plow a strip of land from the
The record contains some seventy-one assignments of error, but those upon which defendant seeks to secure the reversal of the case may be summarized as follows : (1) In admitting evidence as to plaintiff’s title and right to the possession of the premises burned over, and in refusing to direct the jury not to consider as an item of damage in the case any injury to the grass and pasture land ; (2) in permitting the plaintiff to give his opinion as to the value of the property destroyed, without any foundation having been laid therefor; (3) in allowing plaintiff to testify as to convérsations between himself and McCarty, the defendant’s section foreman, before the fire in question was set out, about burning off the right of way ; (4) in refusing to give certain instructions requested by the defendant.
From these conclusions it follows that the judgment must be reversed, and as the other questions discussed in the brief and by counsel at the hearing, interesting and important as they are, may not arise on another trial, or, if so, may be presented in a different form, it is thought best not to anticipate them at this time. The judgment is therefore reversed, and the cause remanded for a new trial.
Reversed.