ROBERT H. WHITE vs. ARTHUR R. SHARPE.

TORT for the destruction on March 22, 1911, of an ice house of the plaintiff by fire alleged to have been communicated from a brush fire negligently started and negligently tended on land of the defendant. Writ dated February 13, 1912.

In the Superior Court the case was tried before Hitchcock, J. The material evidence and an exception taken by the plaintiff to the exclusion of certain evidence are described in the opinion. Under the circumstances there stated, the judge ordered a verdict for the defendant. The plaintiff alleged exceptions.

W. J. Holbrook, for the plaintiff.

F. S. Hall, (S. P. Hall with him,) for the defendant.

DE COURCY, J. The defendant contends that the plaintiff's exception was not taken seasonably. It appears from the record that at the close of the testimony the defendant requested the trial judge to rule that the evidence would not warrant a verdict for the plaintiff. The judge refused to make this ruling, and after fully instructing the jury submitted the case to them at half past four o'clock in the afternoon. On the following morning the jury

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reported that they could not agree; and the judge, of his own motion, directed them to return a verdict for the defendant. The counsel for the plaintiff was not then present in court, but later in the day he asked that his exception be saved, and this was done.

The first part of Rule 45 of the Superior Court reads: "No exception shall be allowed by the presiding justice, unless the same be alleged and saved at the time when the opinion, ruling, direction, or judgment excepted to is given. All exceptions to charge to the jury shall, unless previously saved, be alleged before the jury are sent out." For many years the Rule had gone no further. But in 1900 there was added to the Rule, then numbered 48, the additional provision which has been in force since that time: "When further instructions are given in the absence of counsel after the jury have retired, the presiding justice may permit exceptions thereto at any time within twenty-four hours next following." We are of opinion that the directions given to the jury in the morning and while they still had the case under consideration, constituted, "further instructions," within the meaning and the scope of this clause; and that the exceptions are properly before us. See Goodrum v. Grimes, 185 Mass. 80.

The plaintiff's ice house was north of and about eight hundred feet distant from Glebe Street in Taunton. The defendant's employees were directed by his foreman to burn the brush on the defendant's farm, at a place on the southerly side of Glebe Street, a considerable distance easterly from the plaintiff's building. They gathered the brush into a large pile and set fire to it. Then they left the burning pile unattended while they proceeded to gather more brush. The fire, fanned by a strong wind which had started up, spread over the intervening grass and pine land "as fast as a man could run;" it got beyond their control, and finally reached and burned the ice house. There was at hand no water or chemicals, and no means of checking the fire except shovels and branches; and no effort was made to summon the fire apparatus. As to these facts there was no substantial dispute. The progress of the fire over the dead grass indicated that the ground was covered with dry and combustible materials, notwithstanding some testimony that it rained or snowed on the preceding day. In our opinion the evidence entitled the plaintiff

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to go to the jury. As was stated by Gray, J., in Higgins v. Dewey, 107 Mass. 494, 496, "A man who negligently sets fire on his own land, and keeps it negligently, is liable to an action at common law for any injury done by the spreading or communication of the fire directly from his own land to the property of another, whether through the air or along the ground, and whether he might or might not have reasonably anticipated the particular manner and direction in which it is actually communicated." And see Wallace v. New York, New Haven, & Hartford Railroad, 208 Mass. 16, and cases cited.

As the case is to go back for another trial, it may be added that the judge rightly excluded the plaintiff's offer to show that the defendant's foreman, after the ice house was on fire, stated to the witness Willis that "Sharpe's men were burning brush on Sharpe's premises and that the fire got away from them." Assuming that this could be construed as an admission of negligence, it was not binding as such on the defendant. Gillet v. Shaw, 217 Mass. 59. Nor was it offered under the provisions of R. L. c. 175, § 24, for the purpose of contradicting Ducharme, who was called as a witness by the plaintiff.

Exceptions sustained.