Friedman v. Pacific Outdoor Advertising Co.

MOORE, P. J. The question, for decision is whether the former occupant of a building which was destroyed by fire caused by the flames of an unlawful burning of rubbish on an adjacent vacant lot is barred from recovery by reason of the fact that on one or more occasions prior to the date of the fire he had cast his own waste matter into a bonfire which had been made by the occupants of such lot.

From a judgment in favor of defendants denying recovery to plaintiff on account of losses sufféred by the burning of his personal property located in a building which was destroyed by fire whose origin was on the lot adjacent to such building Friedman appeals. His coplaintiff, Eos Angeles Canvas and Supply Company, owner of the building in question, recovered the value of its losses, which judgment was presumptively settled.* The grounds of his appeal are: (1) The evidence is insufficient to support the conclusion that appellant is barred by reason of his contributory negligence; (2) knowledge by appellant that respondents had on prior occasions violated city ordinances and committed negligent acts does not bar him from recovery.

Appellant conducted, his manufacturing business and kept machines and other personal property of the value of $5,052.77 stored in the rear portion of the building of the Los Angeles Canvas and Supply Company at 1013 North Mission Road in the city of Los Angeles, herein referred to as the corporation’s building. Adjacent and contiguous to the building was a vacant lot used by respondent Pacific Outdoor Advertising Company, hereinafter referred to as respondent, for the purpose of dumping and maintaining thereon waste paper, shrubbery cuttings and other combustible waste material collected from its various properties in the city. The defendant Evans was an independent contractor engaged for the purpose of tending and keeping clean the various properties of respondent throughout the city of Los Angeles used by it for advertising purposes, and made such collections and deposits.† He burned such accumulated waste material every three or four weeks without the use of incinerator and in an open bonfire and closer than 25 feet to the corporation’s building, in viola[949]tion of ordinances of the city of Los Angeles. The municipal code inhibits the burning of brush, waste material, dry grass and weeds on any lot not set aside for such purposes by public authority, without having first obtained a permit from the chief engineer of the fire department so to do and forbids any person in charge of a parcel of land to store or allow to exist thereon any dry grass, paper, litter, waste or any combustible material which constitutes a fire hazard. An exception to the foregoing rule provides that outside of any fire or mountain district all such burning of waste and rubbish shall be done in an approved incinerator at a distance of more than 25 feet from any building, “with a competent person in constant attendance until all fire is extinguished.” The violation of any of such code provisions is declared to be a misdemeanor and the conditions caused by the deposit of such rubbish and waste material on a vacant lot in violation of such ordinance is deemed a public nuisance. (Mun. Code, city of Los Angeles, §§ 57.00, 57.04, 57.24, 57.43, 11.00; Ordinance 77,000 of the city of Los Angeles.)