Gibbon v. . Lamm

Walker, J. The court erred in withdrawing the case from the jury and ordering a nonsuit, as there was some evidence under which the plaintiff was entitled to have the issues submitted to a jury. It appears that the fire was originally set in the pasture and there was testimony to the effect that it was in cleared land, but there also was some that woodland ¿djoined the pasture on one side of it and it was by communication of the fire to the woods that “it got out and spread to the other land.” Whether it was negligent in the defendant to have started the fire, by himself or through his agents or servants, in the pasture, for the purpose of burning the blackjacks to get potash, or, having started it, to have failed after the wind rose with such force and violence as to endanger the premises of adjoining proprietors, to keep the fire under control and prevent it from spreading to other land and destroying the timber thereon, was a mixed question of fact and law, the findings of fact being for the jury, and the law applicable to the facts as found by them being solely a question for the court. If the fire was negligently set, or ordinary care was not exercised on the defendant’s own land, and this was the proximate cause of the injury to the plaintiff’s property, the defendant would be liable. “In general it may be said that a person is not liable for damages caused by a fire in the absence of negligence *424 in its use. One may lawfully kindle a fire on bis own premises for tbe purpose of husbandry, and be is not liable for injury caused by it to tbe property of another in tbe absence of negligence in its management. Ordinary care and caution is all that is required; that is, tbe fire should be kindled at a proper time, under ordinarily favorable circumstances and in a reasonably prudent manner. Tbe owner will of course be liable for injuries from negligence in starting fires or in not using proper precautions to prevent their spread. He is not at liberty to kindle fires, when on account of tbe time, manner, or circumstances it appears probable that damage to others will result, such as setting it in a dry time, or without guarding it sufficiently to prevent its spreading. Nor should be set it near tbe property of another in matter through which it is likely to spread to such property from inflammable matter. It is immaterial whether the negligence consisted in the time or manner of kindling or the means used to prevent its spread, and where a fire is negligently kept it is immaterial in what manner it spreads to the premises of another.” 29 Cyc., 460-461. The following instruction to the jury was given in Higgins v. Dewey, 107 Mass., 514, a case somewhat similar to this one, and held to be correct, and sufficient: “That to maintain his action the plaintiff must prove that the fire which occasioned the damage to his wood was communicated thereto from the fire which the defendant had set on his own land, and that the defendant in burning his brush did not use due and reasonable care in setting the fire, and in said burning did not use due and reasonable care and diligence to control the fire and prevent its escape and communication to the adjoining and surrounding lands; and that the burden of proof upon both these propositions was upon the plaintiff.” The Court there held, by Justice Gray, that if a man who negligently sets fire on his own land, and keeps it negligently, is liable to an action at common law for any injury done by the spreading or communication of the fire directly from his own land to the property of another, whether through the air or along the ground, and whether he might or might not have reasonably anticipated the particular manner and direction in which it is actually communicated, citing numerous cases in support of the proposition. But the case goes beyond this, as N. J. Patterson gave testimony from which the jury may have reasonably inferred, and found, that the escape of the fire from the defendant’s premises was due to the negligent failure of his servants or agents in not preventing the escape of the fire and its spread to other land, as he had instructed them to do, after the wind rose and made it dangerous for the fire to be unguarded. Instead of doing so they went to the house for their dinner, and when they returned, it was too late, as the jury may have found, to stop the fire and save plaintiff’s property, which was burned. *425 We said in Caton v. Toler, 160 N. C., 104, that the rule of care -required of the defendant to prevent the escape of the fire from his own land to that of plaintiff is the ordinary care that a reasonable and prudent person wpuld have exercised under the existing or similar circumstances. In Averitt v. Murrill, 49 N. C., 323, a case relied on by 'the plaintiff, the court charged the jury correctly, as this .Court said, that' the defendant who had set out the fire would be responsible for his own negligence, of course, and also for that of his agents, or servants, which had caused the injury. The question of proximate cause was for the jury, under proper in•structions from the court, and would depend upon the circumstances under which the fire was started and communicated to plaintiff’s land, where his property was destroyed by it. Ordinarily what is the proximate cause of an injury is a question for the jury, aided of course by instructions from the court as to the law bearing upon it. Railroad Co. v. Kellogg, 94 U. S., 469. There was error. The nonsuit will be set aside and a new trial had. New trial.