DISTRICT COURT.

Wairarapa Daily Times, Volume IX, Issue 2556, 24 March 1887, Page 2

DISTRICT COURT.

' T. James % Edward Hughes, claim .for42oo,"dara'age caustd, by bush fire at;Pahia'tuii; ; .. ("''''..■ ..". ■,':;, . \; .-._. '■ The.following evidence was 'taken' yesterday after-wa went to- press:- • ■ '■- Hutching, continued :^The ; fence in front of the house was not one that' bjirn v down, as' it > was' erected with white pine. Bidnbt see the house-catch 'fire. - : Most of, the' property'wasiencedan with post,, fait and jp'aliug. : • TKe house insured' ,%,|loj)j:;; ; Therb was a'mortgage of \ ...■;■:'' f ...- '^^^Mr^aravlJeiqn^

ant and McCafdle came' and* ssis'ted : atVthe tunejof the fire, when defendant asked-howitiie building had. caught. The reason lie'objected to them removing the furniture was on account of the danger they would run owing to the place being on fire. Had no, fire tiurhhig'in front of the house"' •dumg.the %y, .' . -'''. . Bf His' Honor; The fire extended from, the falling bush and thence across the -road^burning • the_ standing' bush. 3n4te way. towaraimy'dwfll'ling*;;;:;-'- •. answer to Jfr,- Beard,. '.plamtlff late'd"th'atlhr housrcW '£lßo.l6' .biiili, miMMMwg (twepke) iout Jls r garden fenceJß damage to, •garden M 7, 16'sBlrough' grazing- M,•furniture, tools, &c. £llß, and other damages, loss of time, £lB. Williain.Corbett, settler of Pahiatua, stated'that Jon the day of the fire defendant called on him anaV-said. he waygoing to set Bennett's bush- oft fire, and' asked witnessl;to"accompany. him. :lt|was blowing! stiffjbreeze at; toe time, 3 Wi&els'Mise'Was about'' a mile'from Mr James'. The wind appeared to" be blowing westerly at the time, and would drive a fire in the direction.of plaintiffs house. ■ It was late in .the ;afternoon v wjieii. witness first .saw the fire. coining from the'fife he told 'witness l that plaintiffs house hadrbeen destroyed, and seemed rather low spirited; about it..' ■■ '•/'''." X\-Cross-examined by Mr Hutchins: Was aa experienced bush faller. On that day would havefired a bush- on: the western side: :;The, prevailing winds are .generally : Mm j-the north-west during this time of the year. ■■ . By His Honor: .Did. not. think defendant could hayechosen a better placeto have staut'edihe fire. ; By Mr Beard; Did not think it safe to set fire to the bush, when a high wind was blowing in,the .direction of anyone's, property!; C.U& /VvS John Singleton deposed that he paid a visit to the scene of the fire on the evening :of;'February Brd. Saw defendant, and told him he ought to have known better than to haye set fire to the bush with that wind. Cross-examined .by Mr Hutchins.; The reason he made the .romark;to' defendant" was that • lie 'thought' he might have got a better burn. ; About three days after the fire', at plaintiffs, he saw a fire spread from Mr'Corbett's across the road, and' catch James' property. _ By His Honor: There was a clearing around plaintiffs house of from one chain to three chains in width. ' Bridget Singleton deposed to seeing plaintiffs house burn down.. Saw fire burning on plaintiffs property on the morning the house was burned down. Knew nothing about, the direction of the wind, only knew it was rather, rough. William Hall, Thomas Hall, and Annie Avery gave evidence with reference to the remark made by, defendant that he had succeeded in burning plaintiff out, but said the remark' was!only made in jest, in answer to'a; jocular query by the last named wjthessi ■ .. ■'• John WflUam Beaufort, surveyor, Pahiatua,.'gavoexpert ; ,evidence as to ■the';action and.'the..conformation of 'the ; has>- upon .the direction jhewind blows .in; different localities in the vicinity bf,Pahiatua. • . Alex Reese,' valuator and insurance agent, Pahiatua, gave _ evidence as.to. : value, of the prdperty' 'destroyed, and winds m that district blwin'g at the-sauie time, in different direction's. This closed the evidence for the plaintiff. ..'.,., Mr Hutchins stated that the defence would first show that the damage done to'the plaintiffs. property was' not due to'the fire bghtedby'; ljisjolient, but through '.fires burning' on. 'plaintiffs own land; previous to the' one lighted by defendant; Secondly, that defend-, ant exercised, the ordinary care infiring the bush, and thirdly, that the damage was caused through ariact of God, that the ordinary foresight of hiirnan reason could hot comprehend. He then called John Hughes, settler,':of-Miatua,, who: stated that he was acting as agent for Mr Bennett, and. that he.had.fallen. Bome-vbush for-him,-and authorised defendant (his brother)' to fire it onFebruary 3rd, as the windwas favorable. The wind was blowing pretty: stiffly, ■ almost a. gale, from the south west at the time.' Ho had been working in the bush all. his' life. The fence opposite plaintiff's house was a kind of Scandinavian two railed fence of no' particular value. It'

was merely .a heap of rubbish and was better put of the. way... The- garden Was of no consequence - and had. the .appearance of having recently -hadsome potatoes dug up 'from it, the trees were apparently not jnjured. "" Cross-examined by Mr.Beard: The garden at the back was of very little value; Had seen:it"scores'; of -times, Considered it safe. to.set-fire to the bush with the wind ihat was blowing, There was a fire on Davie's property during the day. There was fire from' the main road to past plaintiffs house, • Edward James Hughes; defendant, settler of Pahiatua, state&that he',receive'd instructions &om last witness •to fireßennett's'buph, Hewentdown about four o'olook and. saw : plaintiff, who asked witness if he came down to frighten him, Witness answered that "he did not think'the fire would 'hurt' as he seenied to'have' plenty; about." Plaintiff 'said ■ lie' did- not ithink it would" hurt lM'.c The logs about plaintiffs .house \did;;;nQt;Beem very dangerousunless a heavy wihdsprung up,, After he had setfirato'the bush ifc:took about.an hour.to burn out. He to plaintiffs hoiiserpast" the-bush that .was.on&e,.. When f^y'arrived. they saw: bMckreqjijKe;: combg'frtim:' under 'th^eayes"of;,the, ! whioh. Melt very strongly of tar, or felt. ! Should wy the flre-'had broken out about :twenty minutes, ■ Went to' plaintiffs I i.front dopi; ; but.found ,;jt. wis: lookeoY Wont; rourid. to. ~tlie!- ! &&. and'.saw plaintiff and-asked him ; thei;best -way of- getting .the things- out, andhe answered"Oh,it'snot/much gopd." Plaintiff,did .not appear to be /very , anxious: to-save■ the'things; not so .anxious.- as ; witness "-and MoCardle. 'McCafdle; ;■ rode": their Jh6ifffejs jfltd fi-ont - gate. ' ; jl(Soss-e;xlnuned' by Mr' Beard: The •ieason'he/went to plaintiffs house was sgwes»thY usual warning; ;., jjjff '. ■■■'■* \'% ■-■' -■ -{i7&

! : up a r handkerchief to show which way the. . wind ;blew, of yet hear him call attention to the direction the thistle down i blew.; : Did not hear Singleton say that ; he (witness) was a fool for lighting the i fire with a wind blowing like there was. ' Could' not .remember, meeting Mrs ; Mr Ball's : the fol1. .lowing day,- or'yet, saying'anything i about I)Ufaiingplaintiffß.housedown. ' • ~ to the . . gate in&ont : :■'■^examined byJifrHutfehina: The V. t bay shed near^he-houae'w'as' * on.b.otif.sides, and from' \ the.busjitowardß.tlie house would be • ' William Corbett,. re-called by Mr HutohinSj said that when|he visited the place of the ; plaintiff. he found sparkß i blowing about_ from some-Jogs there, 4 i- but.didnot think that-there was any ;! . great danger to plaintiff s.houso. He ;, bonsidefedTithe' fires that we're burning i; onplaintiffs property, to have arisen ' from somefires on his .(witness) pro- . perty. : -'. i • Cross-examined,by Mr ;Beard; Did ' not consider.there was--any great i danger, to plaintiffs'property through i own,.fifes, even .though the wind ; jro.se, to a heayy-breeze,^;.;.. i- ; - ■ '.Wi'*W. MoCardle; Jun-; stated that he.accompanied defendant m the day ,; of the fire. When they got to plain tiffs houso before, lighting' the bush, ; plaintiff said he .did .not.- think there was, any fear ot his house being burned,. ■■: he;,was,only.a|raid.of;hisi hay shed, i line i buVned.V....This witness .corroborated the defendant's evidence in the main. Cross-examined by Beard: 1 Plaintiff stated that .the, fires on his place, were, all., .caused by a match. ! There were fires all over the district, and he would- swear that there were ; logs burning to the north-west of plaintiff s house. Could'not explain i what made plaintiff so apathetic about saving his furniture, he appeared to • be stupid.; Y •" i ;' W. W. McCardle, settlerofPahiatua, , stated that he inspected plaintiffs property, on March 10th,"and described, the conditioji of. the pjace onhis : visit, with the approximate value of things destroyed. ■He had previously . valued the house for plaintiff for £l6O for the purpose of a mortgage. Did not remember plaintiff jhol'ding up a handkerchief on the ' 10th!'Maroh to ■ show which way the wind blew. Had not the least doubt jtllat the plaintiffs house caught fire from'the cow shed fire. _.•■■"" John William. Beaufort was re- { called by. Mr Hutchins to give evidence % as to the wind, and; fire, upon plaintiff's house and fence.- ■ • . John W. Davie gayi evidence as to his property being hurning at the same time that plaintiffs house was burned. The wind was then blowing from the west with a few points to the South;.;..'"' : '" rl . :,J' ■This' concluded' the" case for the ..defence,. and." the oounsel having addressed the Court, His Honor summed up, directing the; jury that the, first: question to'' consider was whether the ■ damage was caused by defendant's fire, at the 7 same time pointing out that although' they had, no direct evidence to. guide them how the house was .destroyed, still there was, the. coincidence ,'of the fires o'ccufi'ing.simulfariebusly. He dwelt upon the imp;oitancec)f the subject to country settlers; wliere fires mußt ba employed dn. clearing 7 , land—a good servant but a ,b'ad';.master, unless properly fire was • started, there-was ho; knowing where •it would ! end,"and'although persons have to means, it docs not .follow,that; they : must burn recklessly the property of tlieir neighbors.'' People settling in bush districts do so at their-own risk in a great measure, .knowing as they do the clearing of the land'can only bo done by the meansof.fire,, and this • can only be done oncV ajeaf, In reviewing the evidence of\the"wind His Honor said they could not'lplftce much importance on Mi] for if they believed all they heard every- gully;; spur and.' flat in. Pahiatua had a different wind. \' With regard; to'the .precautions de- ■ fendanthadtaken it was.shown that ' when he went to plaintiffs house to toll himhewasabout to-firdthe bushho • offered rip: remonstrance .at the time. The question of costs were briefly touched upon and Mr his Honorto' : directthe jury that'aperson , was liable for any .damage done to his neighbour through their fire i. . _ His Honor said that the person lighting the fire was r'o more responsible for the result than a person, would be who • took, a horse ■ and buggy.. from the stable';and subsequently : tlie animal became uncontrollable and did serious injury to property;' 'lfproper precautions were exercised the law protectedthe persons firing the foish, and also the driver of the animal. • The jury retired at;6.26,'a'nd at 7.65 they returned % 'yendiet.for plaintiff for jglSO.and costs," ■ '., •