Lillibridge v. McCann

• Decision Date: 17 May 1898
• Citation: 75 N.W. 288,117 Mich. 84
• Court: Michigan Supreme Court
• Parties: LILLIBRIDGE v. MCCANN.

75 N.W. 288

117 Mich. 84

LILLIBRIDGE v. MCCANN.

Supreme Court of Michigan

May 17, 1898

Error to circuit court, Ottawa county; Philip Padgham, Judge.

Action by William J. Lillibridge against Orlando B. McCann. Judgment for defendant, and plaintiff brings error. Reversed.

George A. Farr, for appellant.

Cutcheon & Swarthout, for appellee.

MONTGOMERY, J.

This is an action on the case for the destruction of plaintiff's house, barns, hay, and grain, orchard, and other property by fire claimed to be caused by the negligence of the defendant. The plaintiff and defendant were farmers living on opposite sides of a highway running east and west through the township of Wright, in Ottawa county. The proofs tend to show that the defendant had a barn upon his premises on the south side of the highway, and abutting upon it, which on the 27th day of July, 1894, was filled with straw, hay, and other combustible material. Over the floor on the south side was a scaffold some 6 feet above the floor, with straw and other things upon it. Across the highway were the barns of the plaintiff, some 10 or 12 rods distant. The barns were filled with hay, and some 20 acres of wheat were stacked near it. The barns substantially joined. The dwelling was about 2 rods from the nearest barn. On the 27th day of July, 1894, the weather was very hot and a drought had prevailed for some time. On that day the wind had risen with the sun, and had steadily blown from the direction of the sun, there being in the middle of the day quite a breeze. This had occurred regularly for several days prior to July 27th. At about 1 o'clock on the 27th the wind came almost directly from the defendant's barn to those of the plaintiff. After dinner, on the 27th day of July, 1894, and a little before 1 o'clock, the defendant lit his pipe, went into his barn, and lay down on the hay or straw on the scaffold over the floor, smoking. He fell into a doze, the pipe fell into the straw, and, igniting it, set fire to the barn. This fire was rapidly communicated to the premises of plaintiff, and his barns, with hay, grain, dwelling house furniture, orchard, shade trees, fences, and personal property, to the value of nearly $3,000, were destroyed. There was no contributory negligence on the part of the plaintiff.

When the plaintiff rested his case, counsel for the defendant moved that the court direct a verdict for the defendant, for the reason that the plaintiff had not by his proofs shown a cause of action. Thereupon the court directed the jury to render a verdict for the defendant for the reason that the negligence of the defendant was not the proximate cause of the injury.

It is argued in this court that there was no evidence that the origin of the fire was the defendant's pipe. The evidence does, however, show that the defendant admitted that he lighted his pipe, and went into the barn, and laid down in the midst of the combustible material, and went to sleep, and that he stated that he supposed that his pipe must have slipped from his mouth while he was asleep. While it is true that this mere expression of opinion would not be conclusive we think the facts shown were such as to require the submission of the origin of the fire to the jury.

It is also insisted that there was no evidence of negligence. It is said there is no evidence of the danger of going into a barn with a pipe lighted or unlighted; there is no evidence of communicating fire from a lighted tobacco pipe to oat straw and counsel cites as a parallel case Wood v. Railway Co. (Wis.) 8 N. W. 214, in which the testimony was that a lighted lamp was left burning in a building which took fire and the court seems to have expressed the opinion that the origin of the fire rested in mere conjecture, although the conclusion of the court apparently rests upon the ground that the leaving of a lighted lamp in a house is not negligent. Without discussing the soundness of that case, we think the distinction between leaving a lighted lamp in a house and lying down to smoke in the presence of straw or other combustibles is obvious, and that it was competent for the jury to draw such inferences from the proven facts as common knowledge would suggest.

The meritorious question is, was the defendant liable for the consequences of the fire spreading from his own building to that of the plaintiff, if the fire in defendant's building be found to have originated in consequence of his negligence? In the...