Brown v. Oregon Railroad & Navigation Co. , 41 Wash. 688 ( 1906 )

Dunbar, J.

This is an action to recover for damages, alleged to have been occasioned to respondent’s property by a fire claimed to have been set on the right of way of the appellant, opposite to the barn of respondent, in Kootenai county, Idaho. The right of way was on one side of the Coeur d’Alene river and the barn on the other, the bam being a few feet from the banks of the river, and the right of way close to the banks of the river; the river being, as we are able to gather from the testimony, from one hundred and fifty to two hundred feet wide. The complaint alleged the negligence of the defendant in burning its right of way with- ' out taking care of the fire, and the damage to the plaintiff by reason of the bam being burned by sparks blowing from the fire to the barn. "Upon the trial of the cause, verdict was rendered for the defendant. At least, we presume such a verdict was rendered. It does not appear in the record, but both appellant and respondent having argued the case on that theory, we have assumed that the verdict was as is alleged. A motion for retrial was granted, upon the ground, as stated by the court, of error in instructing in relation to the negligence of the respondent, and upon no other ground. This appears by a supplemental statement incorporated in the record. The instruction was as follows:

“I instruct you further that, if the plaintiff knew of the existence of the fir© on the land opposite the bam adjoining along the right of way before the same, was communicated to his barn, and if in the exercise of ordinary care he had reason toi believe that there was danger of its being communicated to his bam, then it is his duty to use ordinary care to prevent the fire from being communicated to his bam; that it is his duty to either put the fire out himself or to communicate with the defendant or its employes, if he could. It was in the way of ordinary care, and if he failed to use ordinary care for the protection of his own property against destruction by fire, then the plaintiff cannot recover.”

It is contended by the respondent that there is no question of contributory negligence in this ease, and that there was no duty devolving upon the respondent in the premises, and that, therefore, the instruction had no proper place in the case, and should not have been- given. The appellant cites cases from a great many different jurisdictions to the effect that, notwithstanding the fact that in jurisdictions where contributory negligence is an affirmative defense, as in this state, it is proper to submit to the jury the question whether or not the respondent exercised ordinary care- in protecting his own property, even though no plea of contributory negligence has been set up by the defendant in its answer. These authorities, it is claimed by the respondent, are not in point. But we are forced to the conclusion that they are directly in point — a great many of them; and without reviewing them generally, that the rule is as stated in Bunnell v. Rio Grande etc. R. Co., 13 Utah 314, 44 Pac. 927, where the court says:

“Generally, contributory negligence is a matter of defense, and must be alleged and proven by the defendant; but where the testimony on the part of the plaintiff, who seeks to recover damages for injuries resulting from negligence, shows conclusively that his own negligence or want of ordinary care was the proximate cause of the injury, he will not be permitted to recover, even though the answer contains no averment of contributory negligence.”

And it is the general rule that the want of a plea of contributory negligence will not preclude the trial court from awarding nonsuit, when the evidence introduced by the plaintiff establishes a defense so conclusive in this respect that the court will grant a new trial in case of a verdict in his favor upon like evidence.

If this be true, then we see no inconsistency in the court submitting to the jury questions of fact which, if established as facts, would preclude the plaintiff from recovering. This was all that was done in this case. There was testimoray ora the part of tbe plaintiff to tbe effect that be bad known for a day or two of tbis fire raging on tbe right of way opposite bis bam; especially knew of it that morning; and that be bad left open a door fourteen feet wide wbicb looked toward tbe fire; and, while tbe court in tbis case did not go so far as to say that these wonld be sncb acts and omissions on tbe part of tbe plaintiff as wonld prevent him from recovering, it left it to tbe jury to determine whether sncb acts in their judgment showed tbe lack of tbe exercise of ordinary care.

We are nnable to discover any error in the instruction, and tbe judgment will, therefore, be reversed, with instructions to tbe trial court to deny tbe motion for a new trial, and enter judgment on tbe verdict.

Mount, C. J., Hadley, Fullerton, Crow, and Hoot, JJ., concur.