Page:North Dakota Reports (vol. 1).pdf/279

 question whether or not the fire set out was the proximate cause of the injury was one of fact for the jury: Krippner v. Biebl, 9 N. W. 671; Sutherland on Dam., vol. 1, p. 25; Atkinson v. Goodrich, 18 N. W. 764.

, J. This action was brought to recover damages for the destruction of certain personal property by a prairie fire alleged to have been negligently started by one of defendant’s locomotive engines. The fire occurred on September 21, 1885, and was started about 2:30 on the east side of, and about one rod from, defendant’s railroad track; and, after spreading over about four miles of intervening prairie, reached plaintiff's premises, and destroyed his property, about 5 o’clock  of the same day. The acts of negligence charged in the complaint are briefly as follows: First. Faulty construction of one of defendant’s engines, and its negligent and unskillful management, by reason whereof fire was allowed to escape. Second. The use of lignite coal as fuel to generate steam, which, it was claimed, necessarily resulted in large pieces of burning cinders being emitted from the smokestack. Third. The existence by sufferance of the defendant of large quantities of dry grass and weeds, and other dry and combustible material upon its right of way at and near the point where the fire started. No evidence was offered by the plaintiff in support of either the first or second ground of negligence, as above stated, and hence we shall consider only the third or last ground.

The facts as to the time, place, and circumstances under which the fire originated are not controverted in the testimony; nor do counsel appear to differ in regard to the same. The undisputed evidence tends to show that about 2:30 o’clock of the day of the fire, while one of defendant’s trains was going north on defendant’s line of railroad, and immediately after it had passed a point on section 24, township 142, range 65, a few rods north of a certain crossing, a fire was seen to spring up suddenly, and without visible cause other than that of the passing train, on the east side of the track, and about one rod distant therefrom. When the fire started, a strong wind was blowing from the northwest, and it continued to blow from the northwest until about 4, when it shifted a little to the north, and was blowing