permitted combustible materials to grow and accumulate upon its right of way, and that engines used upon the line of said railroad were furnished with the best known appliances to prevent the escape of fire, and that such appliances were upon September 21, 1885, in good order and that the fire was accidentally and “not negligently communicated to the combustible material on its right of way, and from there to plaintiff's property, the defendant is not liable in this action.” The request was refused. Held, that such refusal was not error. Due care in providing appliances, and in operating a train, does not relieve a railroad company from liability for a loss by fire which originated from sparks accidentally thrown out upon inflammable material negligently permitted to accumulate and remain upon the right of way. Due care in one direction does not excuse negligence in another.
(Opinion Filed October 9, 1890.)
APPEAL from district court, Stutsman county; Hon. Roderick Rose, Judge.
John S. Watson, for appellant: Complaint was defective because it did not negative contributory negligence on the part of plaintiff: Wanner v. N. Y. C. R. R. Co., 44 N. Y. 465; Wilson v. Charlestown, 8 Allen 137; Wheelock v. Boston, 105 Mass. 203; Lake v. Miller, 25 Mich. 274; Moore v. Central, etc., 24 N. J. L. 268; Murphy v. Chicago, etc., 45 Iowa 661; Penn. Co. v. Galentine, 7 A. & E. R. R. cases, p. 517; Thompson on Neg. p. 152. That the wind shifted after the fire started, and that but for such change of direction the plaintiff's property would not have been destroyed, so that there was an independent cause intervening between the cause complained of and the result: Pa. Co. v. Whitlock, 22 Am. & Eng. R. R. Cases, 629 and note; Pielke v. Chicago, etc., 41 N. W. 669; Rorer on R. R., vol. 2, 806-8; Fent v. R. R., 59 Ill. 350; Toledo v. Muthersbaugh, 71 id. 572.
S. L. Glaspell, for respondent: Contributory negligence is purely a matter of defense: Saunders v. Reister, 1 Dak. 151; Mares v. N. P., 3 id. 886 & U. S. S. C., 31 L. Coop. ed. 296; Beach on Contrib. Neg., § 157. That the fire caught on the right of way was sufficiently shown; Ry. Co. v. Benson, 32 Am. & Eng. R. R. Cases 330. The injury to plaintiff was the ordinary and usual result of the fire, and the circumstance of the changing wind being perfectly natural, might, and should have been, anticipated: Cooley on Torts, pp. 68, 71. The
