INSURING SAFETY: KEEPING IN FIRE.

HEWEY V. NOURSE.

(54 Me. 256.-186P.)

N. Abbott for the defendant.

N. H. Hubbard for the plaintiff.

DICKERSON, J. This is an action of the case, charging the defendant with kindling a fire upon his own land, for a lawful purpose, ❝at an unsuitable time and in a careless and imprudent manner," and that the fire, for want of proper care on his part, "spread, and caused great damage to the plaintiff's woodland, down timber, wood and bark." No reference is made in the writ to the statute upon the subject; and the declaration appears to be drawn according to the usual formula where the remedy is sought at common law. As the statute does not abrogate the common law, but is rather a substantial affirmance of it, we need only consider the principles of the common law applicable in such cases.

There was testimony in the case tending to show that there was a piece of crippled land, or land covered with down wood

tomed to do so before. In cases of this kind the ground of the action is that the animals were wrongfully in the place where the injury was done." Cf. Van Leuven v. Lyke, 1 N. Y. 515, (Damage by trespassing swine.)

In Doyle v. Vance, 6 Victorian L. R. Cases at Law, 87, a dog of defendant while on plaintiff's land, as a trespasser, barked at plaintiff's horse, which ran away, tried to leap over a fence and was killed. Defendant was held liable for the value of the horse as damage fairly resulting from the dog's trespass; and the nisi prius ruling in Brown v. Giles, 1 C. & P. 118, that it is no trespass for a dog, without the consent of the master, to jump into another's field, was disapproved.

In Quilty v. Battie, 135 N. Y. 201, a married woman who harbored her husband's dog, knowing it to be vicious, was declared liable for maintaining a nuisance, and for all damages directly resulting from it.

If a dog is a nuisance, it may be killed, when killing is necessary to abate the nuisance, Hubbard v. Preston, 90 Mich. 221; but if it is a trespasser, only, killing is unjustifiable; Bowers v. Horen, 93 Mich. 420.

and brush, adjoining that on which the fire was kindled, and that, after the fire caught on that land, it became unmanageable and was not subject to human control, in consequence of the violence of the wind, until after it had reached the plaintiff's land, and done the damage complained of. The counsel for the defendant contended that the defendant would not be liable for the damage thus done, if the fire was kindled at a suitable time, and in a prudent manner; but the court instructed the jury that, if the defendant was in any fault in setting fire or in guarding and taking care of it at any time before it blew on to the crippled land, in consequence of which fault the wind blew the fire on to the same, he would be liable, although, after the wind so blew the fire, it became unmanageable, until after the plaintiff's property was injured. The verdict was for the plaintiff, and the defendant excepted.

Every person has a right to kindle a fire on his own land for the purpose of husbandry, if he does it at a proper time, and in a suitable manner, and uses reasonable care and diligence to prevent its spreading and doing injury to the property of others. The time may be suitable and the manner prudent, and yet, if he is guilty of negligence in taking care of it, and it spreads and injures the property of another in consequence of such negligence, he is liable in damages for the injury done. The gist of the action is negligence, and if that exists in either of these particulars, and injury is done in consequence thereof, the liability attaches; and it is immaterial whether the proof establishes gross negligence or only a want of ordinary care on the part of the defendant. (Batchelder v. Keagan, 18 Maine, 38; Barnard v. Poor, 21 Pick. 380; Tourtellot v. Rosebrook, 11 Met. 462.)

Where only a portion of the instructions to the jury is reported, it will be presumed that the presiding judge gave all other proper instructions. (Sidensparker v. Sidensparker, 52 Maine, 481.) The "fault" mentioned in the reported instructions is to be understood as that degree of negligence which amounts to a want of ordinary care. The instructions predicate the defendant's liability upon his neglect to use the ordinary means to prevent the fire spreading upon the crippled land indicated by the evidence. The jury were told, in effect,

that if the defendant's fault were not the sole cause of the wind blowing the fire upon the crippled land, he was not liable. The "fault," to be found by the jury, in order to warrant a verdict by the plaintiff, was not a trifling or insignificant one, but a culpable neglect "in consequence of which the wind blew the fire" into the dangerous quarter, a direction quite as favorable to the defendant as he was entitled

Whether the fault or negligence consisted in the time or manner of kindling the fire, or the means used to prevent its spreading, was immaterial, as either would be sufficient to render the defendant liable if the plaintiff had suffered injury thereby. We can discover no error in refusing to give the requested instructions, or in the instructions given.

The motion to set aside the verdict as against the weight of evidence is not sustained. There was testimony on both sides, and the jury have found that it preponderated in favor of the plaintiff. The fitness of the time, appropriateness of the manner, and the requirements of ordinary care in respect to the subject matter in controversy, are familiar topics to those usually called to act as jurors. To justify the court in setting the verdict aside, for the cause alleged in the motion, there must be such a manifest weight of evidence against the verdict, as to render it clear that the jury either misapprehended the evidence, or were guilty of gross misconduct. see nothing in this case to warrant such a conclusion.1

We

1 For the rule in Iowa under a statute as to prairie fires, see Thorburn v. Campbell, 45 N. W. 769. It is negligent to leave a porcelain factory

unguarded while kiln is cooling. (Hauch v. Hernandez, 6 So. 783; 41 La. Ann. 992.)

INSURING SAFETY: GUNPOWDER.

CARTER V. TOWNE.

(98 Mass. 567. — 1868.)

A. Russ for the defendants.

N. St. J. Green for the plaintiff.

GRAY, J. By the well-settled rule of the common law, a person who negligently uses a dangerous instrument or article, or causes or authorizes its use by another person, in such a manner or under such circumstances that he has reason to know that it is likely to produce injury, is responsible for the natural and probable consequences of his act to any person injured, who is not himself in fault. The liability does not rest on privity of contract between the parties to the action, but on the duty of every man so to use his own property as not to injure the persons or property of others. The principle has been applied in a great variety of instances, and may be sufficiently illustrated by a few cases of undoubted authority.

In the leading case of Dixon v. Bell, 1 Stark. R. 287, and 5 M. & S. 198, the declaration alleged that the defendant sent a young maidservant for a loaded gun, whom he knew to be too young and an unfit person to be intrusted with the care and custody of it, and that she carelessly and improperly shot the gun at and into the face of the plaintiff's minor son, and severely wounded him, and put the plaintiff to great expenses for his cure. Upon evidence tending to prove the facts alleged, Lord Ellenborough submitted to the jury the question whether the defendant was guilty of negligence in intrusting the gun to a servant of such an age, who under all circumstances was likely to make such a use of it as a person of greater discretion would not have done; and instructed them that, if they were of opinion that the instrument in such a state ought not to have been intrusted to such a person, the plaintiff would be entitled to their verdict; and the jury returned a verdict for the plaintiff, which the court of king's bench, after argument,

refused to set aside. So the English courts have held that one who delivers an article which he knows to be of an explosive and dangerous quality to a carrier, without informing him of its nature, is responsible for any injury resulting to the ship in which it is carried, to other goods carried with it, or to the carrier's servant to whom the delivery is made. (Williams v. East India Co., 3 East, 192; Brass v. Maitland, 6 El. & Bl. 470; Farrant v. Barnes, 11 C. B. (N. S.) 553. See, also, McDonald v. Snelling, 14 Allen, 290, and cases there cited; Vaughan v. Menlove, 7 C. & P. 525, and 3 Bing. N. C. 468; Mayor of Colchester v. Brooke, 7 Q. B. 377; Longmeid v. Holliday, 6 Exch. 767, 768; Grizzle v. Frost, 3 Fost. & Finl. 622; McGrew v. Stone, 53 Penn. State, 436.)

The declaration in this case alleges, and the demurrer admits, that the plaintiff was a child eight years old, had neither experience or knowledge in the use of gunpowder, and was an unfit person to be intrusted with it; that the defendants, knowing all this, sold and delivered to him two pounds of gunpowder; and that he, in ignorance of its effects and using that care of which he was capable, exploded it, and by the explosion was severely injured. This injury was clearly, within the authorities above cited, the proximate and natural consequence of the defendants' negligence in selling a dangerous article to a child whom they knew to be, by reason of his youth and ignorance, unfit to be intrusted with it, and who probably, therefore, as they had reason to believe, might innocently and ignorantly play with it to his own injury. The case cannot be distinguished in principle from that of a man who delivers a cup of poison to an idiot, or puts a razor into the hand of an infant in its cradle. The want of any direct intention to injure does not excuse the defendants. "Every man must be taken to contemplate the probable consequences of the act he does." By Lord Ellenborough, Ch. J., in Townsend v. Wathen, 9 East, 280. It is immaterial whether the defendants had or had not a license from the municipal authorities to sell gunpowder; for no license could protect them from liability for the consequences of selling it to a person whom they knew to be incapable of taking proper care of The fact that the defendants by their act of negligence

it.