Page:North Dakota Reports (vol. 1).pdf/281

 lieve from the evidence, not only that the. defendant negligently started the fire, but also that the fire so started by defendant was the proximate, and not the remote, cause of the injury complained of. If you find from the evidence that a prairie fire. other than that started by defendant was burning on the north of plaintiff's property at the same time that the fire is claimed to have been started by defendant’s locomotive engine, north of Buchanan station, and that both of said fires, being driven by the wind in the direction of plaintiff's property, were united and joined into one fire before the same swept down upon and destroyed plaintiff's property, then the defendant would not be liable in this action.” And in another part of the charge the court said that the jury were to consider “whether the fire so kindled was the direct and proximate cause uf the fire which burned plaintiff's property, or whether some other fire, other than that which defendant kindled, was the fire which burned plaintiff's property, or whether some other cause intervening between the fire which defendant kindled and the one which burned plaintiff's property was the one which caused him the damage of which he complains.” Again, the court said to the jury that “if the fire so set or kindled by defendant was not the proximate cause of plaintiff's injury, because of some other intervening cause, or because it was not the same fire that caused plaintiff's injury, then you must also find for the defendant.” To our mind, the testimony adduced in the case gives very little countenance.to the theory of counsel of an independent agency or intervening cause which led to the injury; and we are quite clear that, if there was any foundation for the theory to be found in the evidence, the question presented was one of fact to be determined by the jury, aided by proper instructions from the court. In view of the testimony, we think the trial court sufficiently elucidated the law or doctrine of an independent agency, and very properly submitted that feature to the jury. Where doubt arises as to whether damages are proximate or remote, the issue should be presented to the jury by proper instructions. Clemens v. Railroad Co., 53 Mo. 366; Kellogg v. Railroad Co., 26 Wis. 223; Higgins v. Dewey, 107 Mass. 494.

The evidence that the fire which spread and did the damages