Page:North Dakota Reports (vol. 1).pdf/387

inform the jury in what particulars, or how, the higher degree of care which he stated was necessary, under the circumstances of the case, could be exerted; nor did the court by illustration or otherwise, enlighten the jury as to the special nature of that higher degree of care which he said was required in a high wind, and when vegetation was dry. The court did not explain to the jury, and the evidence failed to do so, that in calm weather certain appliances were used, and certain efforts were required to be put forth, by those in charge of the engine to prevent the escape of fire; and that such preventatives were inadequate, and other means must be employed, when a strong wind prevailed. In our opinion, the instruction was clearly misleading. Certainly nothing in the evidence would justify the inference that the defendant could put forth a higher degree of care with respect to preventing the escape of fire at one time than at another. In the absence of such evidence, there certainly is no presumption of law that railroad companies may be less careful with respect to fire on calm days than when the wind is high. On the contrary, due care, in this regard, means the greatest possible care at all times, and under all conditions of wind and weather. See Railroad Co. v. Anderson, 20 Mich. 244. Not having shown unusual care at the time and place in question, the jury would be warranted under the charge of the court, in finding the defendant guilty of want of due care. A prima facie case having been made out by the plaintiff by the circumstantial evidence, the jury would infer that the company had not rebutted the plaintiff's case, inasmuch as the higher degree of care required was not attempted to be shown. The jury were certainly misinformed as to the law, and were misled so far as the matter of requiring a higher degree of care is concerned. Ordinarily, the charge would be prejudicial, and warrant a new trial; but in this case, after a very careful consideration of all the evidence and the whole charge of the court, we are convinced that the verdict was not at all influenced by the erroneous charge. The undisputed evidence shows defendant to have been negligent in two particulars, viz.: In the manner of keeping its right of way in which the fire originated; and, secondly, in allowing the damaging fire to escape from the engine. The defendant did not