Cobb v. Twitchell
| Decision Date | 25 March 1926 |
| Citation | 108 So. 186,91 Fla. 539 |
| Parties | COBB v. TWITCHELL. |
| Court | Florida Supreme Court |
Error to Circuit Court, St. Lucie County; C. E. Chillingworth Judge.
Action by J. E. Twitchell against C. E. Cobb. Judgment for plaintiff, and defendant brings error.
Affirmed.
Syllabus by the Court
Mere setting out of fire for lawful purpose under prudent circumstances is not negligence per se. The mere setting out of a fire for a lawful purpose and under prudent circumstances is not negligence per se.
One lawfully and prudently kindling fire on own premises, in absence of negligence in setting it out or management, is not liable for damage caused thereby. Where one lawfully and prudently kindles a fire on his own premises for a legitimate purpose and with a lawful motive to serve his own business or domestic use, in the absence of negligence in its setting out or subsequent management, he is not liable to another for damage that may be occasioned from the fire.
One setting out fire is liable for injury from failure to use ordinary care in kindling fire and subsequent management to prevent spread. One who sets out a fire is liable in damages for any injury proximately resulting from the failure on his part to use reasonable prudence and ordinary care and caution in kindling the fire as well as in its subsequent management to prevent its spread. In an action of this character negligence on the part of the defendant is essential to a recovery.
Degree of care required to avoid imputation of negligence must be according to circumstances or in proportion to danger to be anticipated. The degree of care required to be used in any given case to void the imputation of negligence must be according to the circumstances or in proportion to the danger reasonably to be anticipated; such care as is ordinarily sufficient under similar circumstances to avoid danger and secure safety.
Negligence may be inferred from circumstances properly adduced in evidence, provided those circumstances raise a fair presumption of negligence; and circumstantial evidence alone may authorize the finding of negligence.
Question of negligence is for jury when facts are disputed, or when difeferent minds may reasonably draw different conclusions from undisputed facts. When the question of negligence depends upon a disputed state of facts, or when the facts though not disputed, are such that different minds may reasonably draw different conclusions from them, the question if for the jury.
In passing on correctness of denial of motion for new trial based on insufficiency of evidence to sustain verdict guiding principle is whether as reasonable men jury could have found such verdict on evidence, and, if jury could have found verdict which it did, ruling of trial court denying motion should not be disturbed. In passing upon an assigment questioning the correctness of the ruling of the trial court in denying a motion for new trial which is based upon the sufficiency of the evidence to sustain the verdict, the guiding principle for an appellate court is, not what it may think the jury ought to have done or what such court may think it would have done had it been sitting as a jury in the case, but whether as reasonable men the jury could have found such verdict upon the evidence. If this question can be answered in the affirmative, the action of the trial court upon such motion should not be disturbed.
Evidence held to support finding of negligence in setting out or subsequent management of fire. Evidence examined, and found sufficient to support a finding of negligence in the setting out or subsequent management of a fire.
Fee & Liddon, of Fort Pierce, for plaintiff in error.
Parker & Thomas, of Fort Pierce, for defendant in error.
This writ of error was taken to a judgment awarding damages to defendant in error, who was plaintiff below, for property destroyed or injured by a fire set out by plaintiff in error. The sole assignment of error is that the trial court erred in denying the motion for a new trial, made by defendant below, which motion assails the sufficiency of the evidence to support the verdict, and asserts that the verdict is contrary to law and the charges of the court.
There is but slight, if indeed there is any, material conflict in the evidence as to the circumstances of the fire; the sole question being whether the evidence discloses facts or circumstances from which negligence on the part of the defendant below may be lawfully found or inferred.
The evidence discloses that on the morning of March 7, 1922, defendant below, plaintiff in error here, started a fire to burn off a right of way for a road, at a point about three-quarters of a mile distant from a citrus grove belonging to plaintiff. When the fire was set out, dew was on the grass, and the morning was still and calm. The defendant had with him a crew of eight men, making nine in all. A fire guard, eight to twelve feet in width, was first cleared off around a portion of the area to be fired, and other fire guards were cut out ahead of the fire from tiem to time as the burning progressed. The underbrush cut from the fire guards was thrown back into the area to be burned, and was wet and pressed down so it would not burn too rapidly. A portion of the area which comprised the fire guards was also wet down with water from time to time. The fire burned slowly until about 10:30 o'clock a. m., at which time the dew had dried off, the wind began to rise from the southwest, and the fire grew stronger. The defendant then ordered the fire extinguished and a fire guard cut completely around the burned area. At about 11 o'clock a. m., it appeared that the fire was completely quenched, all embers and burning sparks put out, and that there was no apparent danger to adjacent property. The defendant, accompanied by one of his men, then left the vicinity to go to a nearby town, leaving orders with the seven men who remained to keep one or two men watching the burned area to prevent a recurrence of the fire. There is credible evidence that these instructions were complied with, two men remaining in or around the burned area most of the time, while the other five men of the crew worked on ahead completing the fire guard which was designed to prevent a spread of the fire in the event it unexpectedly recurred. The men all believed the fire to be out. At about 1:15 p. m., shortly after the crew had finished dinner, fire suddenly broke out in a 'clump' of saw grass, outside and about six feet to the north of the fire guard. As expressed by a witness for the defendant, 'it seemed as though it had gone up in a flash, as though something like an explosion.' This fire when discovered was, as appears by the undisputed testimony of a witness for the plaintiff, 'not more than half as big as this (court) room.' The seven men were all working in the immediate vicinity, and they at once went in ahead of the fire in an effort to extinguish or check it, but 'couldn't do anything with it.' The area between the fire and plaintiff's grove was covered with 'saw grass and myrtle bushes and the like, and burned rapidly,' with the result that the fire reached and 'went through' plaintiff's grove, situated about three-quarters of a mile to the northeast, destroying or damaging a number of valuable fruit trees.
Witnesses for both plaintiff and defendant testified that the original fire was apparently completely extinguished at about 11 o'clock, and that a vigilant lookout was kept continuously thereafter to prevent a spread of the fire in the event of a recurrence. How the fire reappeared or recurred two hours thereafter on the outside of the fire guard, in such volume as to quickly grow beyond the control of seven men, is...
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