Sweeney v. Merrill

• Decision Date: 07 January 1888
• Citation: 16 P. 454,38 Kan. 216
• Parties: MICHAEL SWEENEY v. L. G. MERRILL
• Court: Kansas Supreme Court

16 P. 454

38 Kan. 216

MICHAEL SWEENEY v. L. G. MERRILL

Supreme Court of Kansas

January 7, 1888

Error from Pottawatomie District Court.

THE case is stated in the opinion.

Judgment affirmed.

John T Bradley, for plaintiff in error.

A. H Case, for defendant in error.

HOLT C. All the Justices concurring.

OPINION

HOLT, C.:

In March, 1885, the defendant in error, who was also defendant below, set fire to some cornstalks in his inclosed field, which escaped and swept over to the meadow of the plaintiff toward his stacks; the defendant, going into the meadow, set a back-fire to protect plaintiff's stacks, but the fire escaping from him burned them; either the back fire or the original fire burned up the fence posts of the plaintiff. He brought his action before a justice of the peace, and upon appeal it was tried in the Pottawatomie district court, at the October term, 1885, by a jury; verdict for defendant, and judgment rendered thereon. Plaintiff brings the case here, and in his brief his complaint is of the instructions of the court. The court in substance instructed, that before plaintiff could recover he must show by a preponderance of the evidence that the defendant was guilty of negligence in setting out the fire, or in not preventing it from spreading beyond his own land. The court defined the degree of negligence that must exist as ordinary negligence, being an absence or want of that degree of care which men of common prudence generally exercise in their own affairs.

The plaintiff contends that because fire is a dangerous element, anyone using it must exercise extraordinary care in its use. We do not think his contention is correct. We believe that it is only necessary for the defendant to use ordinary care in setting out the fire within his own inclosure, and in preventing its escape to the land of others. Of course each case of this kind is to be determined to a great extent upon its own peculiar circumstances, and the acts which might be proper care in one case, in another case, under different circumstances, might not be sufficient. To that extent only, the question of negligence is a question of fact for the jury, the measure of negligence or prudence first being defined by the court.

In this particular case the defendant was burning off his lot and preparing it for cultivation, and set the fire upon a calm morning; after the fire had started, the wind veered and there were puffs of wind and a little whirlwind which carried the fire beyond his control. It could not be imputed to the defendant for negligence, because he did not anticipate such a change of the wind.

The plaintiff further complains of the following instruction:

"If however, you find from the evidence that the original fire, set out by the defendant for the purpose of burning stalks on his own land, would, in any event, certainly have caused the burning of the hay-stacks and posts of the plaintiff, then it is wholly immaterial that the defendant undertook to protect the hay-stack by back-firing, and failed in the attempt by negligence or otherwise. In such case, you need only inquire whether the defendant was guilty of negligence in setting out the original fire, or in not preventing it from spreading beyond his own land; and if you should find from the evidence that he was not guilty of such negligence, you will find...