Hayes v. Brandt , 80 Ark. 592 ( 1906 )

Wood, J.,

(after stating the facts.) It conceded in the brief of counsel for appellant that the charge of the court was the law applicable to the facts. But it is contended that the court erred in the following particulars:

1. In permitting the appellee to testify to the loss and value of articles not set out in his bill of particulars.

2. In allowing the deposition of John E. Miller to be read in evidence by the appellee.

3. In refusing to direct a verdict for appellant because: (a.) The proof wholly failed to connect appellant with the setting or keeping of the fire, (b.) The proof wholly fails to show that appellee’s house caught from the burning trash, and (c.) Because there iis no evidence of negligence in the setting or keeping of said fire, and no circumstances from which the jury might infer negligence.

4. The court should have set aside the verdict and awarded a new trial. The verdict traversed the evidence as well as the charge of the court, and ought not to stand.

First. The permitting appellee to testify to the loss and value of articles not 'set out in the bill of particulars was only tantamount to permiting appellee to amend his complaint and bill of particulars, so as to embrace such articles. There was no error in this.

Second. There was no error in permitting the deposition of Miller to be read 'in evidence. It was taken by consent to be read as evidence. The deposition discloses that the witness was a resident of Illinois. The witness was not in attendance upon the court. Under our statute, aside from the agreement of counsel, the deposition was admissible. Secs. 3157-58, Kirby’s Digest.

Third. There was testimony tending to show that the premises on which the fire in controversy was set, were under the control of appellant, and that one in his employ who set this fire had been in the habit of piling and burning rubbish there, and from this source a fire had previously occurred which had burned the fence of appellee, and that appellee, had notified this servant that the fires he was making would “burn appellee out.” This testimony was clearly admissible, as tending to show that appellant had knowledge of the fact that the fires that were being kindled on his premises were dangerous to the property of appellee. Having such knowledge, the duty was imposed upon appellant to observe ordinary care to see that such fires were kept under proper control.^*

The evidence of such fires repeatedly occurring, of which appellant had knowledge, is a circumstance, which was proper to be considered in determining whether appellant had exercised ordinary care to prevent the fire which caused the injury complained of.^†

Fourth. As to whether or not the fire, which caused appellee’s injury, was produced through the negligence of appellant was a question of fact which the court sent to the jury under proper instructions. There was evidence sufficient here to uphold the verdict. Affirm.

* District of Columbia v. Armes, 107 U. S. 519, and cases cited.

† Sec supra; also other cases cited in appellee’s brief.