[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 114
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 115 The question in this case was, whether, in the burning of his fallow, the defendant was guilty of negligence which rendered him liable for the damage done by the *Page 116 spreading of the fire which he set, to the adjoining timber land of the plaintiff's testator. The referee, instead of passing upon this question directly as one of fact, made special findings of the circumstances attending the burning, and from these circumstances found as a conclusion of law that the defendant was guilty of negligence, and it is now claimed, upon the part of the appellant, that it is the duty of this court to review the conclusions of the referee, and decide as matter of law whether the facts and circumstances found by him establish that the burning was conducted in an improper or negligent manner, or at an improper time or season, or whether they show that the burning was prudently and skillfully commenced and conducted, and the signs of the weather were propitious, so that, as a prudent and skillful husband-man, the defendant was justified in selecting the occasion which he did for the burning, and in the manner in which he conducted it.
To decide this question would require a knowledge of the business of farming and burning fallows, which may be possessed by those experienced in such matters, but can hardly be expected of others. The referee, in determining that the defendant was guilty of negligence, must necessarily have been of the opinion that, under the circumstances detailed by him in his report, and in the additional findings inserted on the settlement of the case, the defendant, in setting fire to the rubbish on the lot which he desired to clear, did not use that care which, as a prudent man, skilled in the business which he undertook, he should have exercised to avoid injury to his neighbor. That finding was essential to the conclusion reached by the referee, and, if not expressly stated in the case, must, in support of the judgment, be intended to have been made, provided there is any evidence upon which it could have been predicated. (Grant v.Morse, 22 N.Y., 323; Caswell v. Davis, 58 id., 223.) Negligence is usually a question of fact, and especially so whenever men of ordinary prudence and discretion might differ as to the character of the act under the circumstances of the case. (Thurber v. *Page 117 Harlem, B., M. F.R.R. Co., 60 N.Y., 331, per ALLEN, J.) Some acts, which the experience of mankind and ordinary common sense show to be dangerous, will be recognized by the courts as constituting negligence, such as jumping on or off a railroad car in rapid motion, crossing a railroad track without looking whether a train is approaching, and other acts of equally obvious imprudence. So, the courts will sometimes determine that a case discloses no negligence, but such cases must be very clear. Where, as said by ALLEN, J., in the case before cited from60 N Y, 331, the circumstances are such that men of ordinary prudence and discretion might differ as to the character of the act under the circumstances of the case, the question is one of fact, and an appellate court should not be called upon to review the finding of a jury or referee.
In the present case, the special facts found by the referee, and the evidence in the case, disclose circumstances which prevent us from holding, as matter of law, that the defendant was absolutely free from the imputation of negligence, and such a holding is necessary to authorize the reversal of the judgment. If from the facts found, or from the evidence, the referee might justly have inferred negligence, his conclusion must be sustained. The main facts found and proved are, that the lot which the defendant was endeavoring to clear by burning, was covered with combustible material of quite a substantial sort, consisting of logs and chunks of logs, piled up in heaps, some of them in proximity to the land of the plaintiff's intestate, and similar combustible material extending nearly to his line. The season had been unusually dry; the fire was set in the month of August. The ground was covered with muck, which, at that season, was itself combustible, and the result showed that after the fire was set and a wind arose, the defendant was unable, though he used all due exertions, to prevent the fire extending to the plaintiff's lands; it even spread through the muck surface. His excuse was, that the day before the fire there had been a shower, which lasted one or two hours, and that there were *Page 118 appearances of more rain. Whether this was enough to justify him in setting fire to the stuff on his land, considering the dryness of the season, the nature of the combustible material, its proximity to the land of the plaintiff's intestate, and the other circumstances of the case, were all questions to be determined by persons experienced in such business, and can hardly be disposed of as questions of law. The referee was evidently of opinion that the act of the defendant was negligent and imprudent, and the General Term have approved his finding. The elaborate opinion there delivered by BOCKES, J. (Hays' Adm'r, v. Miller, 6 Hun, 320), in which the facts are fully stated, deters me from going more minutely into the case. I concur in his judgment that the question was, under the findings and evidence, one of fact, and that in support of his conclusion the referee must be intended to have found that the defendant did not, act with due care and prudence. The special findings are not in our judgment, sufficient to negative this conclusion of the referee, and justify us in holding, as matter of law, that his judgment was erroneous. If the question were before us as matter of fact, we might come to a conclusion different from that reached by the referee; but it is only where the judgment is reversed by the court below on questions of fact, that we are authorized to review the case upon the facts.
The judgment must be affirmed.
All concur, except MILLER and EARL, JJ., dissenting; CHURCH, Ch. J., not sitting.
Judgment affirmed. *Page 119