Moon v. Payne

MUSSELL, J.

Plaintiff, Jean Ann Moon, aged 5 years, sustained injuries from a fire set by the defendant in the city of Coalinga. At the time defendant was burning dead bean vines which he had raked off his garden patch into a small pile in the alley near his home.

After the defendant had ignited the bean vines and the fire had burned to coals, he noticed three children, including the plaintiff, Jean Ann Moon, in the vicinity. When the defendant first noticed the children, they were approximately 5 feet from the fire and he looked toward them, told them not to get around the fire and to go home. After the children had been thus warned, they all started down the alley and defendant watched them until they were about 20 feet away from the fire. Pie then turned back to his work of cleaning

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the garden and remained within approximately 25 feet of the live coals. Within two or three minutes he heard a whimper, looked around and saw that the plaintiff’s slacks had caught on fire. He picked her up, tore off the burning slacks and carried the child to her parents, who were next door.

Plaintiff sustained disabling and painful burns and the present action was brought to recover damages for the injuries sustained. Trial was had by the court without a jury and judgment was rendered in favor of plaintiff.

It was shown at the trial that the defendant violated ordinance Number 255 of the city of Coalinga, the pertinent part of which is as follows:

‘ ‘ Section 4. It shall be unlawful for any person to burn or bury any garbage in the yard or open space within the city or to burn any rubbish, paper or other materials in any yard or open place within the city without first obtaining a written permit so to do from the fire chief.”

The trial court found that the defendant had violated the above provision of the ordinance; “that said violation is without justification or excuse and constitutes an act of negligence per se which the court finds to be the proximate cause of the injuries and loss and damages sustained by Jean Ann Moon, and the loss and damages sustained by F. W. Moon and Vernice Moon.” The court further found “that the defendant was only guilty of the negligence above referred to”; “that by reason of said act of negligence of the defendant, Alfred Payne, which act of negligence the court finds to be the proximate cause of the injuries and loss and damages sustained by Jean Ann Moon and the loss and damages sustained by F. W. Moon and Vernice Moon.”