ARK.] MISSOUM PACIFIC RAILROAD CO. V. BENHAM. 35 MISSOURI PACIFIC RAILROAD COMPANY V. BENHAM. 4-4098 . Opinion delivered January 20, 1936. DAMAGES—II4JURY TO PASTURE BY FIRE.—The damage recoverable for destruction of a pasture by fire is the value of the grass or crop at the time of its destruction, ' where no permanent injury is suffered to the soil by destruction of the roots of the grass or plants. 2. DAMAGES—BURNING PASTURE—EVIDENCE.—In arriving at the damage for loss and destruction of meadows and pasture, any evidence which wOuld tend to shed light upon the question is admissible. 3. DAMAGES—DESTRUCTION OF PASTURE.—Where . land is used fOr meadow and pasture, the amount of hay expected and the number of animals deriving sustenance from the pasture is admissible, in determining the probable loss sustained by reason of the fire. 4. DAMAGES—DESTRUCTION OF PASTURE.—An award of $225 for loss of pasture and meadow by fire held not excessive where during the remainder of the year 14 or 15 tons of hay might have been secured and plaintiff's herd of about 20 cattle would have been sustained. 5. NEGLIGENCE—PROXIMATE CAUSE.—Before liability can attach to any one for a negligent act, it must be the proximate cause of the resulting injury and one which, in the light of attendant circumstances, a person of ordinary 'prudence could have anticipated. • • 6. RAILROADS—FIRE IN PASTURE—PERSONAL INJURIES. 7 —A railroad is not liable for personal injuries resulting in a heat prostration of a farmer who on his own initiative assisted a section ere* in fighting fire on a farmer's premises caused by sparks from a locomotive, where the farmer adopted his own method of fighting fire and was not interfered with by the railroad's employees. Appeal from Crawford Circuit Court; J. 0. Kin-cannon, Judge; affirmed in part. Action by W. A. Benham against Ole • Misspqri. Pacific Railroad CoMpapy and . others. Judgment, for plaintiff. Defendants appeal. . Thomas B. Pryor and W. L. Curtis, for appellants-. , . Rains & Rains, for appellee. BUTLER, J. Appeal from a verdict and judgment in favor of plaintiff against the defendant in an action for damages for the destructiOn of a meadow and pas-
36. 1■IIssoum . PACIFw . RAILROAD CO. 1). BENHAM. 1192 ture by fire, • and for ,personal injuries to the plaintiff suffered in an attempt to extinguish the fire. The evidence, most favorably stated for the appellee relating to his; first cause of action, is that he was the lessee of eighty acres . of land on a year to year tenancy, which was 'used aS a pasture and.meadow. The fire was occasioned . by sparks from a passing locomotive of the defendant company which ignited and destroyed the grass standing on the meadow and on that part of the-land • used for pasture. The fire occurred on July 24, 1934. A part of 'the 80-acre tract was devoted to meadow which would produce from 14 to 15 tons , of hay. This, when mowed and baled, was worth approximately $12 per ton. On- that part of the tract devoted to pasturage, the . plaintiff kept from 20 to 28 head of cattle. • The pasturage was of quantity and quality sufficient to sustain , the cattle during the fall and winter. Then, after an interval of about a month in the late winter or .early spring; the sustenance . was sufficient for the Cattle during the spring and summer months. In other words, the pasturage was sufficient td sustain from 20 to, 28 head of cattle during the entire year with the exception of about one month.. • In•addition to the.evidence related above, there was evidence introduced and allowed to go to the jury, over the 'objeetion and 'exceptions of the defendant, to the effect , that the rental value of the 80 . , acres' of land was worth from two to three lmndred dollars per year according :to the estimate Of the several witnesses who testified on this subject *and who were 'farmers residing in the vicinity.. It was . further in evidence that the meadow Was' rendered valueless for that , year, and the pasturage was not . restored ' so as to have any material value during the reniainder of the year. On requeSt. of the defendant, the trial court, in effect, gave an instruction to the jury as a 'measure of damage the usable value of the premises from the date of the fire until the land was restored to. its condition immediately before its destruction. The jury found, on this cause of aetion, for the plaintiff in the sum . of $225. It is insisted by the defendant
ARR.] MISSOURI PACIFIC RAILROAD CO. V. BENHAM. 37. that there was no competent proof offered at the trial based upon the rule for the measure of damages given by the court upon which to predicate the damages awar4- ed by the 'jury, and that, in any event, the sum awarded is excessive. It is difficult, if not impossible, to formulate a •general rule . applicable to all cases by which the Measure .of damage is defined for destruction of perennial crops, whether natural or artificial, because of so many .and - varythg conditions which may affect the result this way or tbat. This court has experienced that difficulty. Because of the character of the meadow involved, the court, iii Ry. Co. v. Jones, 59 Ark. 1.05, 2 . 6- S. W. 595, held that for its destruction by fire the damage was to be measured "by the cost of re-seeding it and its rental value from the time of its destruction until restored." The court had occasion to examine the same question in St. Louis I. M.: & S. Ry. Co. v. Hall, 71. Ark.. 302; 74 S. W. 293, where it, held that,. under the circumstances of That case the measure of damage to the meadow destroyed by fire was . ." the difference between the usable value of the land before • and after the grass was burned down to the time of trial." In Kansas City Southern Ry. Co. v. Wilson,119. Ark. 143, 171 S. W. 484, it was held that . the measure of damage . for burning of a parcel of land used as a pasture "would be the reasonable rental- or usable value of the pasture for the remainder of that season.'.' Tested by the anthority of these cases, the instruction requested ' and given for the defendant in the case. at bar was not . an aecurate and complete declaratiOn• of law. For this reason, however, the defendant .cannot complain. From our own cases and the great weight Of authority, tbe correct rule for the measurement of dam-- a.ges in ordinary cases for the destruction of grasS Or other perennial plants used on lands for meadow or pas-- titre' seems to be this : The damage recoverable is- the value of the grass or . crop at the time of its destruction where no permanent thjury is suffered to the soil by . the destruction of the roots of the grass or plants.. Atlanta & B. Airline, etc. V. Brown, an Alabama case, reported in
38 MISSOURI PACIFIC RAILROAD CO. v. BENHAM. [192 48 So. 73; Risse v. Collins, 12 Idaho 689, 87 Pac. 1006; Evans v. Highland, etc. Co., 27. Utah 475, 76 Pac.. 1135 ; Byrne v. Minneapolis, etc., Co., 38. Minn. 212, 36 N. W. 339, 8 Am. St. Rep. 668 ; International & G. N. R. Co. v. Saul, 2 Willson, Civ. Cas. Ct. App. 612; Thompson v. Chicago B: & Q. R. Co., 84 Neb. 482, 121 N. W. 443, 23 L. R. A. (N. S.) 310. In arriving at the damage for the loss • and destruction of meadows and pasture, the difficulty seems to arise' not so much in the formulation of the rule as in the character of evidence admissible to prove the loss. But it would seem that any evidence which- would tend to shed light upon this question is competent. The evi- dence relating to the rental value of the land necessarily is referable to the purpose for which the land is : used ' and also the nature and character of the product of the soil, and where the land is used for a meadow or pasture, the amount of hay. expected on the one hand or the number of animals deriiring sustenance on the other, is proper for the consideration of the jury in determining the damage sustained from its loss. In the instant case, as iS said in Kansas City'S. Ry. Co. v. Wilson, supra: "The jury had'a right to take into the jury box with them their common sense and experience in the every da.y affairs of life,!' in donnection with the testimony, adduced in deterinining the probable . lOSs sustained by reason' of the fire. APproximatelY five months remained of the year in which the fire occurred, during which time the plaintiff's cattle might have been sustained by the pasture, and from 14 to 15 bales secured.. These facts, together with the testimony of experienced witnesses as to the annual rental value of the premises; in our opinion afford a substantial basis for the verdict of the jury and the judgment of-the court. On this branch of the case therefore the judgment is affirmed. On the second cause of action the evidence, stated most favorably for the plaintiff, is to the following effect : The 80 acres of land, which plaintiff had leased and which was damaged by the fire, was some distance ' from his residence. When notified of the fire and i-k`
ARK.] MISSOURI PACIFIC RAILROAD CO. v. BENHAM. 39 location, plaintiff hurried to the place where he found a number of men engaged in effort to extinguish the flame. Some of these men• were members of the section crew of the defendant. The. foreman,; however,. was not himself engaged in fighting . the fire, and the plaintiff, said to him that if . the-fire was.not put out, it would burn, the house (the house on the premises) ,and, that he (plaintiff) believed that with some water, and a 'sack lie could put it out. The foreman answered saying that..he could, too, if he, were not • sick, and, : "if you , (plaintiff) . 'can, I 'believe the boys ,can, fight ,it• 'behind." Plaintiff's testimony was to the further effect that,. while engaged in fighting .the fire he became ,very hot and sick, and , since that . time he has been unable to do any substantial work. , As to his physical condition, since the- time of the, fire, his testimony was corroborated by that • of physicians and - lay witnesses. • . The basis of plaintiff 's right to recover on this second alleged cause of action was that his personal injuries were sustained when he was an emergency . employee, of the .defendant and that he-became such hy reason of ;the conversation he- had with the foreman of. defendant, the substance •of which has been stated, above. This contention is . based upon the authority of . Booth & Flynn v. Price, 18.3 Ark. 975, , 39 S. W. (2d) 717, in which the rule is recognized and • approved that :where . an . unforeseen emergency arises, making it necessary- in. the employer 's interest that his•employee have temporary assistance, an implied authority ;arises for the employee to procure necessary. help, and, that where one is so procured by the employee, he is. -entitled to the same .protection as. any other employee. It is questionable whether the defendant's foreman procured the plaintiff 's 'help' in fighting • the. 'fire. , From his own testimony it is to, be gathered that his acts in relation to fighting the fire Were at hiS .own suggestion,, and his. subsequent conduct was on his owii initiative to -Which f oreman merely assented. Rut, if he. can • be said to have been an emergency employee, he has neither alleged nor proved any.negligence on the part of the foreman or. any member of the section crew which wa8 the
40 MISSOURI PACIFIC RAILROAD CO. 1). BENHAM. [192 occasion of the "heat prostration" from the effects of which he still suffers. Plaintiff suggested and adopted his own method of fighting the :fire, and proceeded with itS execution according to his own judgment without dictation or interference by any of defendant's employees. Defendant made no contention that the fire was not. occasioned by sparks from its passing locomotive and there was no proof made as to the fire escaping from the locomotive because of any negligence on the part of defendant a§ it was liable for anV damage by fire caused by the locomotive because of § 8569, Crawford & Moses' Digest, whether the fire was occasioned with or without negligence. If, hoWever, it may be assumed that some negligent act or omission on the part of defendant resulted in setting out the fire, nevertheless there is no liability for the physical injuries plaintiff has suffered. It is well settled that, before liability can attach to anyone for a negligent act, it must be the proximate cause of the resulting injury and one which, in the light of attendant circumstances, a person of ordinary foresight and prudence could have anticipated. St. Louis, I. M. & So. Ry. Co. v. Bragg, 69 Ark. 402, 64 S. W. 2-26 ArkanSas Valley Trust . Co. v. Mallroy, 97 Ark. 160, 133 S. W. 816. It was the duty of plaintiff to use reasonable efforts to himself extinguish the fire and thus minimize his damage; if, in doing so, he was intemperate and injury t9 himself occurred, it Was his own fault and a consequence which could not have been reasonably foreseen from the negligent act, if any, of the defendant in allowing fire to escape from its locomotive. In other words, it was his own act which was the active intervening cause directly producing the injury and not the original alleged negligent act of defendant. See cases cited 'supra, and Gage v. Harvey, 66 Ark. 68, 48 S. W. 898; Seale v. Gulf, , etc., Ry. Co., 65 Tex. 274, 57 Am. Rep. 602; Cook v. John-son, 58 Mich. 437, 55 Am. Rep. 703; Logan v. Wabash, etc., Co., 96 Mo. APp. 461., 70 S. W. 735; Light & Power Co. v. Hodges, 109 Temi. 331, 70 S. W. 616, 60 L. R. A. 459. It follows from the views expressed that the verdict ( of the jury allowing the plaintiff the sum of $200 for
ARK.] 41 his personal injuries, and the judgment of the trial court based thereon, is reversed, and that cauSe is dismissed.. The judgment for $225 for injury to the meadow .and pasture is affirmed.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.