Richter v. Harper
| Decision Date | 07 April 1893 |
| Citation | 54 N.W. 768,95 Mich. 221 |
| Court | Michigan Supreme Court |
| Parties | RICHTER v. HARPER et al. |
Error to circuit court, Bay county; George P. Cobb, Judge.
Action by William Richter against George Harper, John W. Heisner and Wilfred E. See to recover for property destroyed and injured by fire alleged to have been negligently set by defendants. Plaintiff had judgment, and defendants bring error. Reversed.
Pratt, Van Kleeck & Gilbert, (Hatch & Cooley, of counsel,) for appellants.
Tarsney & Weadock, (Weadock & Weadock and W. W. Wicker, of counsel,) for appellee.
The plaintiff, in his declaration, averred that the defendants were in possession of a certain store building and of a space 40 feet square of vacant ground immediately in the rear of the building; that they wrongfully, carelessly, negligently and unlawfully caused and permitted to be piled upon this vacant space a quantity of rubbish consisting of boards boxes, shavings, sweepings, etc.; and that the plaintiff was the occupant of an adjoining store, in close proximity to the rubbish, and had in his possession in said store building a large quantity of property, which is specifically described and consisted of the outfit of a museum; and that the defendants on the 4th day of July, 1890, did then and there willfully, negligently, and unlawfully cause to be set fire to the said pile of rubbish, and to cause said rubbish to burn, and the said fire so set as aforesaid spread under, into, and through said building, and caused said building to be burned, together with the goods and chattels of the plaintiff. The plaintiff recovered, and the defendants bring error.
1. The most important question is whether, under the evidence, the jury should have been permitted to find that the negligence of the plaintiff contributed to the injury which he suffered. The circuit judge instructed the jury that there was no question of contributory negligence in the case. The facts bearing upon this question were that on the 3d of July the plaintiff moved his museum into the store building in question; that the defendants caused some rubbish to be piled in the rear of their store, and set fire to it on the 3d of July. The testimony tended to show that this fire continued to smoulder until the 5th of July, about 9 o'clock in the morning, when it again broke out, and burned the building in which the plaintiff's property was stored. The evidence shows that the plaintiff knew that there was a fire burning on the morning of the 3d, when he moved his museum into the building; that two of his employes knew that there was a fire burning there on the 4th of July, one of whom testifies that he went there about 8 o'clock in the evening; that there was quite a fire there. The plaintiff, after this, left two of his employes in charge of the goods, and went to Saginaw. These employes slept in the store building where the goods were stored that night. One of them testifies that he got up a little before daylight on the morning of the 5th, and saw smoke blowing from the north, and went back to bed. The other testified that he got up about 5 o'clock, and observed fire and smoke in the rear of the store, and he also went back to sleep. It does not appear that there was any notice given to the defendants of the spreading of this fire, and we think, under the circumstances disclosed by the proofs, it should have been submitted to the jury to say whether the plaintiff was or was not guilty of contributory negligence. This would depend in large measure upon whether he had reason to suppose that the defendants were assuming to or attempted to control the fire. While, in the first instance, the plaintiff would have the undoubted right to assume that the defendants would perform their duty in providing against the spread of fire, yet if it was brought to the knowledge of the plaintiff that this fire existed there in so close proximity as to make it dangerous to his property, and that no effort was in fact being made to control it, it would be difficult to perceive how, from the time of the discovery of such omission of duty on the part of the defendants, the plaintiff would not be equally negligent in failing to take means to prevent the spread of the fire. The duty of the owner of premises who causes a fire to be set upon them is well stated in Cooley, Torts, p. 700: And at page 704 it is said: "The rules of contributory negligence apply here, as in other cases, but the fact that the neighboring landowner leaves grass and other combustibles on his premises, near the road, does not render him chargeable with contributory negligence; the obligation of care to prevent fires resting not upon him, but upon the company." The circuit judge evidently relied upon the case of Kendrick v. Towle, 60 Mich. 366, 27 N.W. 567. That case was not a case where the negligence of defendant was discovered by the plaintiff at a time when the injury might have been averted as well by the action of plaintiff as by that of defendant, and for that reason is clearly distinguishable from the case at bar. It comes within the exception to the rule quoted from Cooley on Torts. It is urged by plaintiff's counsel that the negligence of defendants was so gross and willful as to excuse concurring negligence on the part of the plaintiff, it being claimed that where the negligence of the defendant is gross or willful the contributory negligence of the plaintiff is not a defense. This is but another way of stating the doctrine of comparative negligence, which has never obtained in this state. It is true that the contributory negligence of the...
To continue reading
Request your trial