Page:North Dakota Reports (vol. 1).pdf/285

 the previously-decided cases, so far as the point here involved is concerned. In the case under consideration, the trial court defined "due care," and fully and fairly submitted to the jury the question of whether plaintiff's own lack of due care contributed to the injury of which he complained. The court, in speaking of this point, said to the jury: "If you further find that plaintiff contributed to said loss in any way by his own negligence, then your verdict must be for the defendant." And further on in its charge the court used the following language: “If you, find from all the evidence in the case that the fire which plaintiff claims that defendant set, and which injured him, would not have occurred if the plaintiff had used the care in the protection of his property which a man of ordinary prudence would have used under the circumstances, then the plaintiff cannot recover,” etc.

Counsel ignore, or at least do not discuss, in their briefs any feature of the negligence charged save that relating to the condition of defendant’s right of way at the point where the fire started, with respect to the inflammable material which it is alleged was suffered to stand and remain thereon. The evidence in support of this species of negligence was all introduced by the plaintiff, and being undisputed was sufficient to warrant the jury in finding the defendant guilty of negligence. One witness testified as follows: “On that trip, I passed or saw, a train of cars of the defendant. It was a mixed train of cars, and had an engine. I did not meet the train. I saw it about a half a mile away, when the fire started from the train. I seen the fire start. I was about a half mile distant. The fire was started near the railroad-crossing known as the ‘Gilmore Crossing.’ I drove right to the place where the fire started, and drove to the station, and I saw the fire coming to the south-east, with a high wind. The fire started about a rod north of the crossing, and about a rod from the track on the east side of the track on section 24, As soon as the train left the place where the fire started, I saw the fire flash up, and everything was in a blaze, and at a high wind. The fire started in the grass and weeds on the east side of the track. The grass and weeds in which the fire started were from six to twelve inches high. I was familiar with that locality, and the lay of the land