Clark v. Kansas City, Ft. S. & M. R. Co.

CLARK, District Judge, after making the foregoing statement, delivered the opinion of the court. The liability of the defendant, as determined under common-law rules, is supposed to be changed or affected by statute, as found in the Code of Arkansas (section 7362, Sand. & H. Dig.), which is as follows: “If any person shall set on fire any grass or other combustible material within his enclosures, so as to damage any other person, such person shall make satisfaction in single damages to the party injured, to be recovered by civil action in any court having jurisdiction of the amount sued for; but if such person shall, before setting out the fire, notify these persons whose farms are adjoining said place which he proposes to burn, that he is going to fire such grass or other combustible matter, and shall use all due caution to prevent such fire from getting out, to the injury of any other person, he shall not be liable to pay damages, as provided in this section.” It is 'quite clear, we think, that the statute is not applicable to a case like the one with which we are here dealing, and that the subject of this enactment may be dismissed, as the case is controlled in its result entirely by common-law principles. It is said in brief, and was stated in the argument at bar, that the learned judge in the court below withdrew the case from the jury under the view that the contributory negligence of the plaintiff’s agents was so conclusively shown as to require that this issue should be treated as one of law, by peremptory instruction. We conclude that this was error, on the facts disclosed in the record. It could hardly be doubted, on this record, that the timekeeper and station agent were both notified of the fires and the danger apprehended for the distinct purpose of causing some precaution to be taken. This was at the hour of 9 or 10 o’clock a. m. Sunday, and the ;fire occurred, as stated, about 11 o’clock at night. After thus giving notice, what further act or duty were the plaintiff’s agents required to do ? It is suggested that they should have gone on the pretnises of defendant and extinguished the fire, but such a course of action would or might have brought on difficulty with the gang who were using the fires. It is evident some difficulty would be experienced in pointing out just such specific affirmative action as was called [343] for, beyond what was done, in order to exonerate plaintiff’s agents from the charge of-contributoiy negligence. It is not controverted, and could not be, that, apart from the origin of these fires and any liability in that regard, whenever the fires became a known fact and a condition on the premises of the defendant, it was at once charged by law with the obligation to exercise reasonable care and caution to prevent damage to adjacent property liable to be ignited by escaping sparks. In support of this proposition the cases of St. Louis Southwestern R. R. Co. v. Ford, 65 Ark. 96, 45 S. W. 55, and Ball v. Grand Trunk R. Co., 16 U. C. C. P. 252, may be referred to as in point. See, also, the cases of St. Louis & San Francisco Ry. v. Mathews, 165 U. S. 5, 17 Sup. Ct. 243, 41 L. Ed. 611; Milwaukee, etc., Railway Co. v. Kellogg, 94 U. S. 469, 24 L. Ed. 256; and 13 A. & E. Encycl. of L. (2d Ed.) p. 464, and cases collated. In determining the questions of negligence and contributory negligence, the jury would necessarily consider distance, the character of the exposure to the fires, the hour of night, the direction and velocity of the wind, the condition of the weather as to dryness or moisture, and as being clear or cloudy. In short, every fact and circumstance constituting the entire situation would be given due and proper attention. An important matter for consideration would be the precautions which either party could have easily or conveniently adopted to guard against the apparent danger. A duty rested on each party to exercise proper care. Such means and methods as were readily and practically available to the agents of each party should have been adopted, to the extent of exercising reasonable care and prudence. Such precautions as a reasonably prudent man would be expected to take under the given circumstances would be the measure of care required by law. These precautions should have been taken by the defendant, in the first instance, to prevent the emission of sparks liable to set on fire buildings situated close by; and, in the second place, like care should have been exercised by plaintiff to prevent the building from being ignited. Neither party was required to resort to unreasonable or extremely difficult measures of precaution. The plaintiff was not required to adopt unreasonable methods of extreme difficulty to guard against a danger negligently set up and maintained by the defendant on its own premises. We are clear that, in view of all the facts and circumstances, the danger was not so threatening and immediate as to require the court to treat the alleged contributory negligence of the plaintiff as plainly evident, and as a question of law. On the contrary, we think negligence and contributory negligence were both issues of fact which the court should have submitted to the jury for determination. Dunlap v. Northeastern Railroad Co., 130 U. S. 649, 9 Sup. Ct. 647, 32 L. Ed. 1058; Mexican Cent. Ry. Co. v. Murray, 102 Fed. 264, 42 C. C. A. 334; Delaware, etc., Railroad v. Converse, 139 U. S. 469, 11 Sup. Ct. 569, 35 L. Ed. 213; Richmond & Danville Railroad v. Powers, 149 U. S. 43, 13 Sup. Ct. 748, 37 L. Ed. 642; Choctaw, Oklahoma, etc., R. R. Co. v. McDade, 191 U. S. 64, 24 Sup. Ct. 24, 48 L. Ed.-. The burden of proof was, of course, upon the defendant to establish the fact of the plaintiff’s contributory negligence, as in other [344] cases. Strawboard Go. v. C. & A. R. R. Co., 177 Ill. 513, 53 N. E. 97; Northern Pac. R. Co. v. Lewis, 51 Fed. 658, 2 C. C. A. 446. The judgment is accordingly reversed, and the case remanded, with directions to set aside the verdict and award a new trial.