Page:North Dakota Reports (vol. 1).pdf/287

 and prudent man upon his own premises, if exposed to the same hazard from fire, were the combustibles accumulated upon the defendant’s right of way.” This instruction, in our opinion, embodies the most.reasonable rule of law applicable to right-of-way fires, and one which seems to be fair to both sides. See authorities above; also Railroad Co. v. Salmon, 39 N. J. Law, 299; Railroad Co. v. Stanford, 12 Kan. 379; Webb v. Railroad Co., 49 N. Y. 420; Railroad Co. v. Crawford, 24 Ohio St. 631.

The requests presented by defendant’s counsel; and which were refused by the trial court, are numerous and voluminous, and we think that it is unnecessary to quote them at length in this opinion. Such portions of the requests as were unobjectionable were given in the charge to the trial jury, and have been already adverted to. Those which were refused seem to us to have been properly refused under the rule of law as laid down by the authorities cited. One of the defendant’s requests was as follows: “If you find from the evidence that the defendant permitted combustible materials to grow and accumulate upon its right of way, and that engines used upon the line of said railroad were furnished with the best known appliances to prevent the escape of fire, and that such appliances were on September 21, 1885, in good order, and that fire was accidentally and not negligently communicated to the combustible materials on its right of way, and from there to plaintiff's property, the defendant is not liable in this action.” Overlooking merely verbal objections, this request embodies a proposition directly the opposite of our views of the law. In our opinion, due care in operating the train in all respects will not relieve the company from responsibility for a loss from fire which originated upon a right of way covered with inflammable material in which the fire ignites, and which is, by the negligence of the company, permitted to accumulate and remain upon the right of way. Due care in one direction cannot excuse negligence in another direction.

At the opening of the argument in this case respondent’s counsel moved the court to “dismiss the appeal,” and affirm the judgment of the court below, for the reason, as counsel claims, that the bill of exceptions, which is in fact annexed to the judgment