Dodd v. Read
| Decision Date | 03 December 1906 |
| Citation | 98 S.W. 703,81 Ark. 13 |
| Parties | DODD v. READ |
| Court | Arkansas Supreme Court |
Appeal from Howard Circuit Court; James S. Steel, Judge; affirmed.
Action by Nannie Read, administratrix of the estate of C. H. Read against T. J. Dodd & Co. to recover damages caused by destruction of plaintiff's house by fire alleged to have been communicated from a stationary steam engine which defendants were operating.
The plaintiff recovered judgment for $ 300 damages, and defendants appealed.
Judgment reversed and cause remanded.
W. C Rodgers, for appellant.
1. The verdict was excessive. No witness testified that the house was worth over $ 200, and the jury could not arbitrarily disregard the testimony and award $ 300 damages.
2. There is no proof that there are any spark arresters which were not used, yet the court in its first instruction assumes that proper appliances were not used by defendant. The instruction as to "the best and latest appliances," therefore, is abstract, and it was erroneous. 41 Ark. 382; 56 Ark. 457; 61 Ark. 549; 74 Ark. 19; 76 Ark. 348; 70 Ark. 441; 58 Ark. 324.
The second instruction given for plaintiff is open to the same objection, besides assuming that defendants are liable if sparks set fire to the house in the absence of the use of a spark arrester. It is also in conflict with another instruction given for defendants. 54 Ark. 588; 61 Ark. 141; 64 Ark. 332; 65 Ark. 64; 72 Ark. 14; 72 Ark. 440; 76 Ark. 69; 76 Ark. 224; 91 S.W. 304; Id. 759; 92 S.W. 27.
Feazel & Bishop, for appellee.
1. It was the province of the witnesses to state facts, and from the facts thus detailed it was the province of the jury to fix the value of the house. 59 Ark. 105. They were not bound by the opinions of witnesses, if such opinions had been competent. They had the right to consider other evidence tending to establish the value of the property.
2. The instructions complained of were justified by the proof and the circumstances, and were properly given.
That the mill was permitted to run while the danger was so apparent without spark arrester or appliances of any kind to prevent the escape of sparks, after their attention had been called to the danger, was gross negligence on the part of appellants, for which they are liable. 30 Mich. 181; 34 Wis 315; 44 Ohio St. 80; 90 N.C. 374; 25 N.Y. 344; 40 Barb. 137; 53 Mich. 607. The burden was on defendants to show due care and diligence in the use of approved appliances to prevent the spread of fire. 90 N.C. 374.
Plaintiff theory being that it originated from a defect in the chimney of the house. This question was submitted to the jury on evidence sufficient to sustain a finding either way, and the verdict settled that issue.
The evidence is undisputed that defendants operated the steam engine without the use of a spark arrester or other appliance to prevent the escape of sparks, and the court gave instructions which in effect declared the law to be that they were liable for any damages resulting from fire communicated by the engine on account of such failure to provide a spark arrester or other appliance. The court, in other words, declared the failure to provide a spark arrester or other appliance to prevent the escape of sparks to be negligence per se. Was that correct, or should it have been submitted to the jury to say whether or not it was negligence? We think the court was correct in its instructions. Ordinarily in this class of cases the question is one for the jury to determine whether proper care has been exercised in providing appliances to prevent the escape of fire; but where, as in this case, no appliances at all have been supplied for that purpose, the court should declare it to be negligence as a matter of law. Fire is a dangerous agency, and a person or corporation using steam power in the operation of a lawful business must exercise care to prevent the escape of sparks from the smokestack of the engine. Planters' Warehouse & Comp. Co. v. Taylor, 64 Ark. 307, 42 S.W. 279.
Where any effort has been made in that direction, it is always a question of fact for the determination of a trial jury whether or not ordinary care has been exercised, but where no precautions at all have been taken, no safety appliances whatever have been provided, and by reason of proximity there is danger to other buildings, then it follows as a matter of law that proper care has not been exercised, and it...
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