there. The grass and weeds were dead. It had frosted, and they were in good condition to burn everywhere in the neighborhood. There had been no grass or weeds cut on the right of way at this particular place. They were high and dry. Had been so since the early part of September. They had not been cut down there, or mowed off and destroyed. It was quite windy. The wind was from the north-west, and blowing south-east. The fire was traveling south-east, very fast, when I last saw it, traveling in the direction of Gram’s house. There was no plowing there within 100 yards on either side of this point, and there was not, to my knowledge, any fire protection of any kind.” The witness further testified that the grass and weeds extended from the track east, clear out on the prairie, and that the adjoining land-owners had not cut or mowed down any grass on their land, and their land was in the same condition as the right of way as to dry grass and weeds. Another witness testified: “I don’t know exactly where the fire started, but in that place there is a small slough, and the grass ran up to the track, nearly. The grass there was heavy, very dry, and would burn. Had been in that condition for two or three weeks prior to that time. No effort had been made, that I know of, to plow any fire-breaks within fifty feet of the railroad tracks. Had such been done I would have been apt to have known it.” Other witnesses Observed the same fire, and testified as to its continuous course, and saw it when it struck and destroyed plaintiff's property. This evidence stands undisputed, and under the authorities certainly tended to show that defendant was negligent, as charged in the complaint, as to keeping its right of way clear from combustible material, and that fire from a passing train caught in such dry material upon the right of way and spread until the damage was done. There is much conflict of authority, but the trial court, we think, stated the better law applicable to this feature of the case in the following instructions: “You are instructed that it was not negligence per se in the defendant to suffer such natural accumulation of dry grass and other combustible matter on the sides of its track as was liable to be ignited by sparks of fire from its engines, unless it was to such an extent as would not be permitted or done by a cautious
