Tacoma Lumber & Manufacturing Co. v. City of Tacoma

The opinion of the court was delivered by Hoít, J. Plaintiff in error sued the defendant in error to recover the sum of seven hundred dollars as damages for burning of saw logs alleged to have been caused by the negligence of defendant in kindling fires, in the opening of Pacific avenue, a street in the city of Tacoma. Issues were joined, trial had, and verdict and judgment for defendant. - The court instructed the jury upon the subject of contributory negligence by plaintiff, and the only question presented by the record and argued here is as to the propriety of such instructions. The only evidence upon that subject was to the effect that plaintiff had cut the logs in question upon lands adjoining said street in the month of February,- and had left' [15] them on the ground where cut until they were destroyed in August following; that the logs were in the midst of thick brush and weeds, which extended to the limits of the street in question. Did this testimony tend to show such negligence on the part of the plaintiff as could be held to have contributed to the destruction of said logs by the fire set by the defendant in the opening of said street? If it did, the action of the court below was correct, as it is the province of the jury to pass upon the sufficiency of the evidence; but if it did not, then the action of such •court was wrong, as it is error to submit to a jury an issue in regard to which no evidence has been introduced. We are of the opinion that the latter proposition is true, .and that the testimony did not, in the least degree, show such negligence on the part of the plaintiff, as, under the law, could be held to have contributed to the loss. In fact, it seems to us that the plaintiff was guilty of no negligence whatever, as we think he had a perfect right to cut the logs and leave them upon the premises as he did, and was entitled, at any and all times, to have them projected from the wrongful, or negligent, acts of any and all persons. In this view of the undisputed evidence in the case, it follows that there was no question of the negligence of the plaintiff having contributed to the loss for the jury to ■decide, and that the giving of the instruction complained of was error, for which the judgment must be reversed, and the cause remanded for a new trial; and it is so ordered. ÁNDees, C. J., and Dunbae, Scott, and Stiles, JJ., «concur.