Hanson

From a judgment in the sum of $2,500 after trial before a jury in an action to recover damages for the negligent acts of defendant in burning weeds on lots adjacent to plaintiff’s property, defendant appeals.

The evidence being viewed in the light most favorable to plaintiff (respondent), the essential facts are:

This is the sole question necessary for us to determine:

This question must be answered in the affirmative and is governed by the following pertinent rules:

Applying the foregoing rules to the facts in the instant case, it is evident that the trial judge violated rule 1, supra, by submitting to the jury, through the last paragraph of the quoted instructions, the question of whether or not defendant was engaged in a governmental or proprietary function at the time the alleged negligent acts were committed which resulted in damage to plaintiff.

This error was prejudicial since under the conceded facts and rule 2, supra, defendant was engaged in a governmental function in burning the weeds which resulted in the fire that caused damage to plaintiff. Therefore, under rule 3, supra, defendant was not liable for the damage caused, as there was no statute in existence…