Gute v. Halstead

MARKS, J.

This is an appeal from a judgment for $800 damages resulting from a fire which started on defendant’s property and spread to the property of plaintiff destroying his cabin and the growth on the land.

The trial court found that defendant on September 22, 1944, negligently started a fire on his own property, and negligently permitted it to spread to the property of plaintiff. The sole ground of appeal is that there is no evidence of negligence of defendant supporting these findings.

Plaintiff and defendant own adjoining properties in the mountainous district of San Diego County. The countryside was covered with dry grass, leaves and other inflammable materials.

Defendant and his wife were engaged in building a tent-house near an oak tree on their property. They had cleared the site and had raked the dry grass and other inflammable

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materials from under the oak tree. There was a strong breeze blowing.

Defendant becoming tired at his labors, sat down to rest on a sawhorse which was under the edge of the oak tree, about five feet from its “drip line,” and about five feet from the inflammable material which had been raked from under the tree. He rolled a cigarette and reached around and struck a “kitchen type” match on the sawhorse. When he raised the match in front of his face he saw that the head was broken off. He testified that he immediately looked around and saw that a fire had started in the dry grass; that he and his wife immediately attempted to extinguish the blaze; that they stamped on it, beat it with boards, tried to smother it with a canvas and dirt and poured water on it without any success; that the fire, driven by the wind became a conflagration and spread from defendant’s property to plaintiff’s.

The foregoing facts are not disputed and it is urged that there is no reasonable inference of negligence to be drawn from them to support the judgment.

The rules governing trial and appellate courts in deciding cases when there is no conflict in the evidence are set forth in

Mah See