Arkansas Valley Trust Co. v. McIlroy

• Citation: 133 S.W. 816,97 Ark. 160
• Parties: ARKANSAS VALLEY TRUST COMPANY v. MCILROY
• Decision Date: 02 January 1911
• Court: Arkansas Supreme Court

133 S.W. 816

97 Ark. 160

ARKANSAS VALLEY TRUST COMPANY v. MCILROY

Supreme Court of Arkansas

January 2, 1911

Appeal from Sebastian Circuit Court; Daniel Hon, Judge; reversed.

Jugdment reversed and cause remanded.

Read & McDonough and Ira D. Oglesby, for appellant.

1. The rule is fundamental that, in order to recover damages on account of the unintentional neglect of another, it must appear that the injury was the natural and probable consequence thereof, and that it ought to have been avoided in the light of attending circumstances. 150 U.S. 249; 69 Ark. 42, 45; 86 Ark. 289. There must be a direct connection between the neglect of the defendant and the injury. 55 Ark 510; 58 Ark. 157; 91 Ark. 260; 70 Ark. 331; 79 N.E. 950; 79 S.W. 927.

2. Appellee was clearly guilty of contributory negligence as a matter of law. 76 Ark. 10; 112 Ill.App. 531; 114 Ill.App 118; 78 N.Y. 355; 70 Ark. 331.

Vincent M. Miles, for appellee.

1. This suit was brought by the child to recover for her own pain and suffering, and not for the benefit of her parents. Hence negligence of her parents, if any, will not be imputed to her. 77 Ark. 398; 68 Ark. 1; 63 Ark. 177.

2. The question of contributory negligence was fully presented to the jury in the instructions of the court. 59 Ark. 180; Id. 215; 72 Ark. 1. The contention that instruction "A" presupposes that all fires are attractive to children is without merit. 66 Ark. 47.

3. Berg's negligence is shown by the evidence. If he did not act under all the circumstances as a person of ordinary prudence should, he was negligent; and if this negligence was the proximate cause of the injury, appellants are liable. The question whether or not he properly guarded the fire after having started it was one for the jury. 16 Ark. 308; 22 Neb 621; 102 Mich. 69; 60 N.W.297; 54 Minn. 522; 56 N.W.243; 23 L. R. A. 513. Appellee was no trespasser, but, even if she had been, she would be entitled to recover. 152 U.S. 268, 38 Law. Ed. 434.

OPINION

FRAUENTHAL, J.

This was an action instituted by Mary L. McIlroy for the recovery of damages for personal injuries sustained by her from burns which it was alleged were caused by the negligent acts of the defendants. The plaintiff was a minor about 12 years old, and she was living with her father in the city of Fort Smith upon premises rented from one of the defendants, the Arkansas Valley Trust Company, a domestic corporation, of which C. R. Breckinridge, another defendant, was president. A. H. Berg, the third defendant, was employed by the Arkansas Valley Trust Company to rent out and care for said premises. In December, 1908, said Berg set fire to the dry grass and weeds which had accumulated in the yard on said premises. It was alleged in the complaint that, after setting fire to said grass and weeds, said Berg carelessly and negligently went away without leaving any competent person to attend to and care for said fire while same was yet vigorously burning; that the plaintiff came into the yard where the fire was left burning, and therefrom her clothing was ignited, burning her body severely. The testimony on the part of the plaintiff tended to prove that said Breckinridge authorized and directed said Berg to burn the grass and weeds on said lot, and that at the time said Berg set out said fire the plaintiff was upon the porch of the house in the same yard, and that he left the fire while it was still burning, and that he directed the plaintiff to watch or guard it. The testimony on the part of the plaintiff tended further to prove that the child went to the burning grass, either to guard or play with it, and that her clothes caught fire therefrom. The testimony on the part of the defendants tended to prove that, after setting fire to the grass, Berg remained until it had died out except in some low places where it was slightly smoldering, and that he did not see the plaintiff and did not request her to watch the fire. The plaintiff was of the average intelligence of a girl of 12 years of age, and on the day that Berg set out the fire her father and mother were at the house and saw the fire set out by Berg and did not object to the firing of the weeds and grass.

Upon its own motion the court gave the following instructions to the jury.

"A. If a person leaves a fire or other instrumentality attractive to children unguarded at a place where children are accustomed to go and play, and a child does go to or near such fire or other dangerous instrumentality attractive to children, and is injured, such child can recover damages from all those concerned in leaving unguarded such fire or other dangerous instrumentality attractive to children.

"B. If the jury finds from the evidence that the proximate cause of the injury to the plaintiff was some voluntary act of hers in attempting to set fire to and burn grass, and was not caused by reason of or on account of negligence of defendant Berg (if negligent) in leaving fire in the yard, then defendant would not be liable."

And at the request of plaintiff it gave among other instructions the following:

"5. If you find from a fair preponderance of the testimony in this cause that defendant, A. H. Berg, while acting within the scope of his authority as agent for the Arkansas Valley Trust Company, and under the directions of C. R. Breckinridge, negligently set out a fire on the lot of the residence of Mary McIlroy's father, and negligently left said fire before the same was extinguished, and went away, and that Mary McIlroy, an infant of tender years, went to or near said fire and began to play with the same, and while so doing accidentally caught fire and was burned and injured as set out in the complaint, you will find for the plaintiff and against the defendants, unless you find that she was of sufficient age and discretion to be able to guard against her own negligent acts, if guilty of any."

The defendants requested the court to give the following instruction, which was refused:

"5. If the jury believe from the evidence that the defendant Berg set fire to the grass in the McIlroy yard at the request of plaintiff's mother or of his own volition, that after the grass had about burned out he left, that plaintiff then went into the yard with pieces of paper and set fire to some of the grass which had not burned, and while engaged in thus setting fire to the unburned grass she in some way accidentally caught on fire, the defendants are not liable."

The jury returned a verdict in favor of the plaintiff for $ 2,500 against all the defendants, and they have appealed from the judgment rendered thereon.

The liability of the defendants to the plaintiff for the injury which she sustained depends upon whether or not it was a consequence of negligence on the part of Berg and due to a want of that prudence and care which the law required him to observe in setting out and guarding the fire. It is not contended that he did not have the right to set out the fire but it is urged that he was negligent in leaving the fire while it was yet burning and thereby attracting the plaintiff, a child, to this dangerous but alluring element, which was unguarded. The principle upon which the act of negligence of Berg is thus predicated is that where one maintains upon premises an object of uncommon character which is dangerous in its nature and to which children would ordinarily be attracted he is liable for the consequent injury to them therefrom. And it was upon this principle that the above instruction "A" was given by the court of its own motion. By that instruction the jury were told that if a person leaves a fire or other instrumentality attractive to a child unguarded at a place where the child is likely...