Kendall v. fordham

• Decision Date: 16 March 1932
• Docket Number: 5062
• Court: Utah Supreme Court
• Parties: KENDALL et al. v. FORDHAM et al

9 P.2d 183

79 Utah 256

KENDALL et al. v. FORDHAM et al

No. 5062

Supreme Court of Utah

March 16, 1932

Appeal from District Court, Fourth District, Utah County; A. v Watkins, Judge.

Action by E. Fred Kendall and another against J. Eugene Fordham and another. The action was dismissed as to the unnamed defendant, and, from a judgment for plaintiff defendant appeals.

REVERSED, and cause remanded, with directions.

J. W Robinson, of Provo, and Romney & Nelson, of Salt Lake City for appellants.

Will L. Hoyt, of Nephi, for respondents.

ELIAS HANSEN, J. CHERRY, C. J., and STRAUP, FOLLAND, and EPHRAIM HANSON, JJ., concur.

OPINION

ELIAS HANSEN, J.

This action was brought to recover damages for the alleged negligence of the defendant in causing a fire which burned up a wheat field of about 93 acres belonging to the plaintiffs. Louis S. Beckett was originally made a party defendant, but the action as to him was dismissed. The cause was tried to a jury who returned a verdict in favor of the plaintiffs for the sum of $ 800. Judgment was entered for the amount of the verdict. A motion for new trial was made and denied. The defendant appeals. He seeks a reversal of the judgment because of alleged error of the trial court in refusing to direct a verdict in his favor, in refusing to give some of defendant's requested instructions to the jury and in misdirecting the jury as to the law applicable to the evidence. Complaint is also made because of rulings of the court below on the admission and rejection of evidence.

Plaintiffs allege in their complaint that the fire which destroyed their wheat field was caused by the negligence of the defendant in the following particulars: That defendant negligently drove his automobile upon plaintiffs' premises; that he negligently left his automobile standing upon a portion of the plaintiffs' land which was covered with a growth of dry June grass immediately adjoining plaintiffs' wheat field; that at the time the defendant parked his automobile on plaintiffs' premises the automobile was smouldering with a fire kindled by a lighted match or a burning cigarette negligently dropped or left in the automobile by defendant, or because of defective wiring in the automobile; that, upon returning to his automobile after being elsewhere for about half an hour, defendant discovered that his automobile was smouldering with fire, and upon discovering the fire defendant called to H. M. Carter to assist him in extinguishing the fire, and that defendant and Carter negligently, and in disregard of the obvious danger of fire spreading to plaintiffs' wheat field, threw numerous burning fragments and particles of burning material out of the automobile into the dry grass adjoining plaintiffs' wheat field, thereby igniting the grass and causing the damage complained of; that the defendant negligently failed to extinguish the fire in the grass, but on the contrary permitted it to spread to and destroy plaintiffs' wheat field; and that defendant negligently failed to push his automobile away from plaintiffs' wheat field after he discovered the automobile was burning.

The following is a brief summary of the facts established by the evidence: The wheat field involved in this controversy was located on the Levan bench, a few miles south of Nephi, in Juab county, Utah. The defendant met H. M. Carter on a street of Nephi. Defendant asked Mr. Carter to accompany him to plaintiffs' farm. Mr. Carter consented. Defendant, accompanied by Mr. Carter, drove out to plaintiffs' farm in defendant's automobile, a Hudson coach. They left the car standing on plaintiffs' premises near the wheat field and walked over to where one of the plaintiffs was engaged in repairing a combine harvester. After defendant and Mr. Carter had been in the wheat field for a period of time, variously estimated by the witnesses as being from one to two hours, they commenced to return to the automobile. At about the time they started to walk back to the automobile, a high wind begun to blow from the northeast toward the southwest. As they were returning to the automobile they discovered that it was burning. The fire was in the front part of the automobile. A blaze was coming out of the ventilator in front of the windshield. Upon discovering the fire, defendant and Mr. Carter ran to the automobile and proceeded to put out the fire by throwing dirt on it and smothering it with burlap sacks. Soon after defendant and Mr. Carter began working to put out the fire in the automobile, a fire started in the dry cheat or June grass near the automobile. Almost immediately the fire spread to plaintiffs' wheat field and despite anything that could be done, about 93 acres of the wheat was destroyed. One of plaintiffs testified that, as soon as he discovered that the automobile was on fire, he holloed to the defendant and Mr. Carter to push the automobile back away from the grain field. Defendant and Mr. Carter testified that they did not hear the plaintiff hollo. There is no competent evidence tending to show that the defendant and Mr. Carter were able to push the automobile away from the grain field. The testimony of two of plaintiffs' witnesses is to the effect that either the defendant or Mr. Carter threw a burning pad out of the automobile onto the June grass, thereby causing the fire, and that the burning pad could readily have been thrown on to nearby ground which was not covered with combustible material. The testimony of defendant and Mr. Carter is to the effect that the fire in the June grass and wheat field started before any of the pad was thrown out of the automobile.

The trial court submitted to the jury for its consideration and determination the question of whether or not the defendant was negligent as to each and all of the alleged acts of negligence charged in the complaint. Defendant requested the court to charge the jury that there is no evidence that the starting of the fire in defendant's automobile was due to the negligence of the defendant, and also that the alleged negligence of the defendant in parking his automobile near plaintiffs' wheat field was withdrawn from the consideration of the jury. The refusal of the court to so instruct the jury is assigned as error. The law is well settled in this jurisdiction, as well as elsewhere, that it is reversible error for a court to submit a charged act of negligence to a jury for its consideration...