Page:North Dakota Reports (vol. 1).pdf/280

 from the last-mentioned quarter at about 5, at which time the fire, which had been running rapidly before the wind, struck and consumed plaintiff’s property. Plaintiffs premises are on section 34, township 142, range 64, and consequently are located about 4 1/2 miles southeast of the initial point of the fire. The course or path of the fire was continuous and unbroken from where it originated to the plaintiff's premises. i. e., from northwest to southeast; but the ravages of the fire were temporarily arrested at several intervening points, and its direction diverted for short distances by farms, plowed ground, and fire-breaks. There is evidence tending to show that, in one place, the fire, on striking an obstacle which it could not leap over, divided—one part going north of and away from plaintiff's property; and the other branch of the same fire moving south, and around obstacles, and thereby reaching plaintiff's place, and doing the damage. Defendant’s counsel, at the close of the plaintiff's testimony, requested the court to direct a verdict in defendant's favor. This was refused, and the ruling is assigned as error. We think the ruling was clearly correct.

Appellant’s counsel ingeniously argues that the loss suffered by the plaintiff was not a result which could be reasonably contemplated, or one which naturally flowed from the act of negligence complained of, for the reason, as counsel claims, that the plaintiff's loss was caused by an independent agency, viz, by a change of wind from northwest to north, or nearly north, which it appears occurred shortly before the fire reached plaintiff's premises. But whether such slight change of wind did or could, as an independent agency, operate to bring about the loss which the plaintiff has suffered was a matter of pure fact for the jury to decide, and was not a matter of law to be determined by the court. The witnesses who gave their opinions upon the question did not agree as to whether the change of wind did or did not bring about the plaintiffs loss. The question was one about which intelligent men might reasonably and honestly differ, and therefore the trial court very properly declined to invade the province of the jury, and arbitrarily determine a matter of mere fact. In its charge to the jury the trial court said: “In order that the plaintiff may recover in this action, the jury must be-