63 Neb. 143 | Neb. | 1901
The Freewater Cemetery Association- commenced this action in the district court of Harlan county against Harrison Vansyoc to recover damages alleged to have been sustained by it by reason of a fire which it is claimed defendant set out, and which it is charged spread upon and over the plaintiff’s land and damaged its property. The trial resulted in a verdict in favor of the plaintiff for $75, upon which judgment was subsequently rendered, to review which the defendant has brought error to this court.
It is insisted by the plaintiff that this court has no jurisdiction to determine the questions presented by the
The defendant insists that the petition does not state a cause of action and that his objection to the introduction of any evidence should have been sustained. The second paragraph of the petition contains the material allegations presented by the objection and is as follows: “That on or about the 10th day of April, 1897, the defendant set fire to the grass upon land adjoining that of the plaintiff which was used for cemetery purposes in Harlan county, Nebraska, which said fire immediately spread upon and over the said land of plaintiff, and burned the grass thereon, together with numerous shade and ornamental trees,- and killing all of said trees, being twenty or more in number, which were then standing and groAving upon the said land of the plaintiff, which said fire did damage the plaintiff ‘in the destruction of said trees,’ and the injury to the cemetery grounds, in the sum of $200.” It Avill be noted that there is no allegation in the petition that the defendant was negligent in setting out the fire or that he was negligent in permitting it to spread to the premises of the plaintiff. The allegation is simply that he set fire to the grass, that it spread to plaintiff’s premises and damaged them. The law does not presume negligence; he who relies upon the want of ordinary care as the basis of a cause of action must plead and prove it. A person has the right to set out a fire upon his premises for the purpose of husbandry or for any other lawful purpose, and the mere setting out a fire is not negligence. The circumstances, however, under which he does it may render the act negligence for which liability Avill follow. So the mere spreading of the fire does not of itself impute negligence. The utmost care and diligence may have been exercised to prevent its spreading, and if so, no liability would attach for resulting damage. In this cáse, the defendant may have been negligent in set
It is but justice to counsel for both sides to say that neither appeared in the action'in the lower court.
It is, therefore, recommended that the judgment be reversed and the cause remanded for further proceedings.
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is reversed and the cause remanded.
Reversed and remanded.