Fabry v. San Joaquin Light & Power Corp.

KERRIGAN, J.

These two actions were consolidated for trial in the court below, and have been likewise eonsoli

[753]

dated on appeal. They are companion cases to

Dibble

v.

San Joaquin Light & Power Corp.,

47 Cal. App. 112 [190 Pac. 198]. That .case, like these, was for damages for the destruction by fire of certain grain belonging to the plaintiff, and in each of them the plaintiff prevailed. From the judgment in the present case the defendant has appealed.

Plaintiffs and their assignors were the lessees of certain lands near Huron, in Fresno County, upon which they had grown crops of wheat and barley. On the afternoon of June 8, 1915, and while the crops were still on said premises, they were destroyed by fire, whereby respondent Fabry and his assignors sustained- damage in the sum of $41,467.50, and respondent Vanderburgh sustained damage in the sum of $6,032.54. The defendants owned and operated a power line near the property in question, and before and at the time of the breaking out of the fire were engaged in repairing it, the work being done by two employees, named Schultz and Moore. When these men were first observed by Mr. McCabe, a witness on behalf of the plaintiffs, one of them was in the act of descending from a pole supporting the power line, whiph was located about fifty feet easterly from the center, and two hundred feet south, of the county road which bounded on the west the Dibble land, which adjoined the lands here involved. The other man was then on the ground near the -foot of the pole, where a small grass fire was burning. Around the fire was tall, thick, dry grass which extended to the Dibble land. The grain in question, except a small -portion which had already been harvested, was standing and ready for harvesting. Numerous other fields of standing grain were in the immediate vicinity. The danger from fire was further increased by the fact that a wind was blowing in the direction of the Dibble land from the fire. About twenty feet from the place where the fire was burning Mr. McCabe observed a fire-pot with fire in it, the fire-pot being so situated that the wind would carry sparks from it toward the place of the fire. There was also a torch, such as is used by plumbers, lying just where the fire was burning. A team and wagon of the defendant San Joaquin Light and Power Corporation was standing in the immediate vicinity of the pole. The name or initials of said company were painted on the side of the wagon and its initials were also on the harness of the team. When Mr. McCabe