Owen v. Cook
| Decision Date | 01 December 1899 |
| Citation | 81 N.W. 285,9 N.D. 134 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Kidder County; Winchester, J.
Action by Eugene S. Owen, as administrator of the estate of Eleazer Shoemaker, against E. C. Cook and others. Judgment for plaintiff. Defendants appeal.
Reversed.
Judgment reversed, and a new trial granted.
John E Greene, for appellants.
Newton & Smith and Alexander Hughes, for respondent.
The plaintiff prosecutes this action as the administrator of Eleazer Shoemaker, deceased, to recover damages suffered by the latter during his lifetime in the destruction of certain buildings and other property in a prairie fire which occurred on October 6, 1897, in Kidder county, about 11 miles from Dawson. The complaint charges the defendants with negligently starting the fire which caused the destruction of the property in question, and also with negligence in permitting it to escape from the place where it was started. The answer denies that the defendants started, or caused to be started, the fire described in the complaint, and denies that plaintiff's intestate sustained any damage by reason of any act or omission on the part of the defendants. The case was tried in the District Court to a jury, and a verdict was returned against the defendants in the sum of $ 900. A motion for a new trial was made in the District Court, based upon the alleged insufficiency of the evidence to sustain the verdict. No question was raised as to the pleadings, and no errors were specified on the admission of evidence. It was conceded in the motion that the property of plaintiff's intestate was destroyed by prairie fire at the time and place alleged in the complaint, and that the property so destroyed was of the value of $ 900, as found by the jury. Defendants' entire contention was and is that the evidence is insufficient to charge them with responsibility for the fire which occasioned the loss in question. The motion for a new trial was denied, and judgment was entered against the defendants upon the verdict. This appeal is from the judgment and the order overruling the motion for a new trial, and presents for review the same questions that were before the trial court in the motion for new trial.
The record shows that the five defendants were residents of the State of Illinois, and that they came as a party to Kidder county for the purpose of hunting, and that they arrived in Dawson, in said county, on October 6, 1897, and there secured the services of one Chris Wisner and his brother, with their teams, to convey them and their hunting and camping outfit to their hunting grounds. It appears that they went immediately to a small lake, called "Kilby Lake," about 14 miles distant from Dawson. Wisner had secured permission for the party to occupy a vacant house which was located at the south end and on the east shore of the lake, and about 20 rods from the southeast shore. The party arrived at the house at 11 o'clock in the forenoon, or a few minutes later, and at once proceeded to unpack their outfit and settle themselves in the house which was to be used as their camp and headquarters. Kilby Lake is a small body of water, perhaps 50 rods wide and one-half mile long, extending almost due north and south. All of the county surrounding the lake for varying distances was then unbroken prairie, covered with dead and dry grass. The buildings and property of plaintiff's intestate, which were destroyed by fire on that day, were situated two and three-fourths miles almost due south of the south end of Kilby Lake, where the defendants were camped. From Kilby Lake to where the property in question was burned, and beyond, it was open prairie. There was a stiff wind on that day, coming from the north, a little west of north; traveling, as estimated by one of the witnesses for plaintiff, at 20 miles an hour. During the time when defendants were settling their belongings in the Kilby house, and about 11:30 a. m., a smoke was seen to arise on the prairie about a quarter of a mile northeast of the house, in a depression between two small hills or knolls which concealed the fire itself from view for a time. All of the eyewitnesses agree that the fire originated at this point. Within a few minutes the fire was seen advancing over the knoll to the south, from whence it swept southward with increasing swiftness. The line of fire went between thirty and forty rods east of the house where defendants were camped. E. C. Nafus, a witness for plaintiff, came towards the fire from the east as soon as he saw the first smoke. He testified that the front, or head fire, was about twenty rods wide when it was one-half mile south from its place of starting, and that he went south from that point in front of the advancing flames a mile and a quarter for the purpose of back-firing to protect his property, and that he had fired but about three rods when the head fire reached him. This was at 12:30 p. m., as near as he could fix the time. At this point the head fire, which was here but a few rods wide, was stooped by a fire break and a weed patch. This witness followed the east side fire, and back-fired in that direction outside of his fire break, and in advance of the flames spreading eastward towards his premises. But little attention was paid by this witness to the side fire on the west, but he testified that the fire passed west of his fire break, and went south about a mile and a half. This carried the line of fire one-half mile south of the property which was destroyed, and one-half mile east of it. This witness says: The fire on the west side burned westward all along the line from Kilby Lake to its terminus in the south, a distance of more than three miles. John W. Goodman, another of plaintiff's witnesses, and one who was nearest the west side of the fire, testified that it was "side-firing and back-firing all the way along,--all the way along the full length of the first head fire." Another witness, E. C. Stinchcomb, was a mile west of the fire line. He testified to the stopping of the head fire at 12:30 p. m. at the point indicated by the witness Nafus, and says: The defendants and one of the Wisner brothers were at the Kilby house, engaged in protecting themselves, their property, and the house from the fire which was advancing towards them from the north and from the east. What they did will be considered later. We have stated sufficient facts to give an intelligent understanding of the questions presented on the motion for a new trial, and before us upon this appeal.
At the close of the case the defendants moved the court to instruct the jury to return a...
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