Steffens v. Fisher

• Citation: 143 S.W. 1101
• Parties: STEFFENS v. FISHER.
• Decision Date: 05 February 1912
• Court: Court of Appeal of Missouri (US)

143 S.W. 1101

STEFFENS v. FISHER.

Springfield Court of Appeals. Missouri.

February 5, 1912.

Rehearing Denied February 26, 1912.

1. TRIAL (§ 81)—OBJECTIONS TO EVIDENCE— SUFFICIENCY.

A recital in the record that "the defendant objected to this question" insufficiently shows a valid objection to testimony.

2. NEGLIGENCE (§ 134) — FIRES — SPREAD — EVIDENCE—SUFFICIENCY.

In an action for negligently permitting a fire to so spread that it burned the fence of plaintiff, an adjoining farm owner, evidence held to warrant a finding that the damage was caused by defendant's negligence.

3. TRIAL (§§ 139, 156)—DEMURRER TO EVIDENCE —WHEN PROPERLY SUSTAINED.

A demurrer to plaintiff's evidence should be sustained only when it leaves no room for men of reasonable intelligence to differ as to the finding, which should be reached; and every inference in plaintiff's favor must be drawn in which a jury might indulge.

4. EVIDENCE (§ 587)—CIRCUMSTANTIAL EVIDENCE—WEIGHT.

An essential issue may be established by circumstantial, as well as direct, evidence.

5. NEGLIGENCE (§ 21)—FIRES—ESCAPE—LIABILITY.

A landowner is not liable for the escape of fire caused by a sudden and unexpected high wind arising after the fire was started.

6. NEGLIGENCE (§ 21)—FIRES—ESCAPE—LIABILITY.

A landowner is not liable for the escape of fire from his premises if he has used reasonable care to prevent it.

7. DAMAGES (§ 111) — FIRES — DESTRUCTION OF FENCE.

The measure of damages for negligent burning of a fence is its actual value as it stood.

8. TRIAL (§ 253)—INSTRUCTIONS—REFUSAL.

In an action for negligently permitting a fire to escape, an instruction that plaintiff was bound to show that defendant failed to use ordinary care in watching the fire, etc., was

properly refused, as ignoring the issue of defendant's negligence in not back firing.

Appeal from Circuit Court, Texas County; L. B. Woodside, Judge.

Action by Henry C. Steffens against Henry C. Fisher. Judgment for plaintiff, and defendant appeals. Affirmed.

Dooley & Hiett and W. E. Barton, for appellant. Lamar, Lamar & Lamar, for respondent.

GRAY, J.

This suit was commenced before a justice of the peace in Texas county to recover damages resulting to respondent's fence by reason of a fire alleged to have escaped from appellant's premises. There was a judgment for plaintiff in the justice court, and on trial anew before a jury at the June term, 1911, of the circuit court of said county, he was again successful and recovered a judgment of $44.40, and defendant appealed.

The first assignment of error is that the court erred in admitting certain evidence offered by plaintiff tending to prove the proper steps to be taken to prevent fire from escaping. The record discloses that no objections were made to the competency of this testimony, but that each objection was in the following form: "The defendant objected to this question." The objections were insufficient. State v. Crone, 209 Mo. 316, 108 S. W. 555; Fuller v. Robinson, 230 Mo. 22, 130 S. W. 343.

The second assignment of error is that the court should have sustained plaintiff's demurrer to the evidence. This assignment is based on the ground that the evidence was insufficient to show that the fire spread from the brush piles burned by defendant, or, if it did that defendant failed to use ordinary care in controlling it and preventing the spreading thereof to plaintiff's premises. The plaintiff and defendant were adjoining landowners. Defendant owned 80 acres of land, consisting of a tract a quarter of a mile wide east and west, and a half mile long north and south. Plaintiff owned 80 acres running east and west, and his west 40 was directly north of defendant's north 40. There was a public road along the south line of defendant's land, and also one 7 or 8 feet wide running along the east side of his south 40, and then on an angle to the northwest through the west 40 to a point some distance west of defendant's tract, and then extending to the southwest until it intersected the county road running east and west along the south side of defendant's premises. On the 1st day of February the defendant, with some hired men, was engaged in clearing a part of his land, and set fire to a brush pile, and it is claimed by plaintiff that the fire escaped from this brush pile and burned north and across the road, and spread to his premises and burned 4,440 rails, then in a fence.

The plaintiff offered testimony in substance, as follows: In his own behalf he testified that the fire occurred on the 2d day of February, and at that time there was a strong wind blowing from the southwest, and there had been no rain since the preceding July, and the ground was extremely dry; that the land was timber and brush land, and had not been burned over for several years, and was covered with leaves; that he first saw the fire about noon, and that he went down to the public road and the fire was then crossing the road and was burning on the north side and toward the northeast; that he observed that it was then burning on the south side of the road, and that it had come from that side; that the next day he found fire in a brush pile on defendant's land, where it had been burning; that grass and weeds had grown on either side of the public road until there was only a strip seven or eight feet wide occupied by the road that was free of grass. George McKinney testified that on the day preceding the fire he was working for defendant on his premises; that during the day they had burned two brush piles; and that on the evening when they quit work there was fire in one of them.

Joe Foster testified that the fire crossed the road, and was burning to the northwest. John Gross testified that he saw the fire in the forenoon at about 11:30, and that it was on defendant's premises south of the road, but burning in a northeasterly direction towards plaintiff's premises. John Willhite testified that about dark of the evening preceding the fire he passed along the road, and that he saw the fire burning on defendant's premises; that he noticed the...