Wisconsin & Arkansas Lumber Co. v. Scott

• Decision Date: 22 December 1924
• Docket Number: 66
• Citation: 267 S.W. 780,167 Ark. 84
• Parties: WISCONSIN & ARKANSAS LUMBER COMPANY v. SCOTT
• Court: Arkansas Supreme Court

267 S.W. 780

167 Ark. 84

WISCONSIN & ARKANSAS LUMBER COMPANY v. SCOTT

No. 66

Supreme Court of Arkansas

December 22, 1924

Appeal from Hot Spring Circuit Court; Thomas E. Toler, Judge reversed.

Judgment reversed and cause remanded.

T. D Wynne and Henry Berger, for appellant.

The court erred in not directing a verdict for the defendant. 159 Ark. 484. A property owner is required to do whatever is reasonably necessary to protect his property from injury, and cannot permit the injury to occur and claim full damages when he might have prevented it or lessened its effect by a reasonable expenditure. 123 Ark. 8; 102 Ark. 246.

D. D Glover and A. W. Jernigan, for appellee.

OPINION

WOOD, J.

This action was instituted by Eva Jernigan, Sarah McKee Vance and J. T. Scott against the Wisconsin & Arkansas Lumber Company and Arkansas Land & Lumber Company. The plaintiffs, Jernigan and Vance, alleged that they were the owners of certain lands over which the defendants had constructed their railroad; that, on the first of August, 1922, defendants negligently set out fire and burned plaintiffs' fence, to their damage in the sum of $ 75; that J. T. Scott had rented the lands for the year 1922, and, by reason of the burning of the fence, they had been unable to collect their rent from Scott in the sum of $ 75. They prayed for damages in the sum of $ 150.

J. T. Scott alleged that he had rented the lands from the co-plaintiffs, and that he was using the same as a pasture for his stock, consisting of horses, hogs and cattle; that he had sustained damage by reason of the loss and destruction of the fence in the sum of $ 150, and had been deprived of the use of the pasture in the additional loss of $ 50, and prayed judgment in the sum of $ 200.

The defendants denied the allegations of the complaint. The cause was submitted to the jury, which, upon the evidence adduced, returned a verdict in favor of the defendants against Mrs. Vance and Mrs. Jernigan and in favor of the plaintiff, Scott, in the sum of $ 112.50. Judgment was rendered in favor of the plaintiff, Scott, against the defendants in that sum, from which the defendants appeal.

The appellee predicates his right to recover upon the alleged negligence of the appellants in setting out fire and destroying the fence, which he alleged caused his damage. The appellants, on the other hand, denied that there was any negligence. The issue as to whether appellants negligently set fire to the fence which inclosed the land appellee had rented was submitted to the jury under correct instructions, and it suffices to say that this issue, under the evidence, was one of fact for the jury, and their verdict is conclusive here on that issue.

Among other instructions, the court gave the following, at the instance of the appellee: "No. 4. You are instructed that, if you find from the evidence in this case that the defendant company negligently burned the fence that inclosed the plaintiff, John Scott's, hogs, and you find from the evidence that the defendant company knew that the stock was so inclosed, it would be its duty to exercise ordinary care to prevent them from escaping from said inclosure, and if you find from the evidence that it did not exercise that degree of care, and you find that the plaintiff's damage was caused thereby, it will be your duty to find for John Scott in whatever sum he was damaged by its failure to exercise ordinary care, unless you further find that John Scott did not exercise proper care to prevent said loss." And, at the instance of the appellants, the court gave...