Perry v. Southern Pacific Railroad

50 Cal. 578

• Court: California Supreme Court
• Decided: July 1, 1875
• Docket: No. 3920
• Status: Published

Opinion

By the Court:

The court below instructed the jury, in effect, that if dry grass had been allowed to remain on the track, and fire had been communicated to it from the engine, the defendant was liable for “all damages occasioned by the ignition of such grass,” etc.

This was error. The permitting of dry grass to remain, “which would readily take fire,” was not negligence per se, but evidence from which negligence might or might not be inferred by the jury, reference being had to the surrounding circumstances. (Illinois Central v. Mills, 42 Ill. 407.)

And whether the destruction of plaintiff’s property was the proximate result to be reasonably expected from defendant’s negligence, was also a question of fact to be submitted to the jury. (Henry v. Southern P. R. R. Co., ante, p. 176.)

The question herein considered was not presented in the case last cited.

Judgment and order reversed, and cause remanded for a new trial.