Page:North Dakota Reports (vol. 1).pdf/386

 correct, but was pertinent alike to the evidence and the issues made by the pleadings. See Nelson v. Railway Co., (Minn.) 28 N. W. Rep. 215; Karsen v. Railway Co., 29 Minn. 12, 11 N. W. Rep. 122. Whether the rule of law is founded upon a statute, as in Minnesota, and some other states, or is established by judicial exposition, as is the case in some jurisdictions, can make no difference. When once adopted, the scope and effect of the rule is the same. It is quite true that plaintiff could have made out his case without showing negligence, either as to the character of defendant’s machinery or the mode of its operation, by showing, as he did, that the fire in question was the proximate result of fire thrown out from defendant’s train upon its right of way, and which ignited in combustible matter negligently permitted to accumulate and remain upon the right of way; but plaintiff had the right also to allege and prove, as he did, that there was negligence with respect to the machinery used, and the manner of its operation. We find no error in the instruction of the court upon this feature of the case.

The defendant duly excepted to the following instruction to the jury: “The care must be proportionate to the danger. A higher degree of care is required in running engines when the wind is high than when it is calm, and when combustible matter is very dry than when it is wet.” We think this instruction was unwarranted by the evidence as given. It is doubtless true, in general, that the law exacts care from all persons in proportion to the danger to be avoided; and this principle is applicable to cases of this character. 8 Amer. & Eng. Enc. Law, p. 3, and note. But the instruction must be considered with reference to the evidence. The evidence showed conclusively that at the time and place where the fire originated vegetation was very dry on the right of way and adjacent thereto, and that when the train in question passed the place where the fire started a strong wind was blowing from the northwest. The evidence established the existence of a state of facts under which, according to the directions of the trial court to the jury, it was incumbent upon the defendent to put forth “a higher degree of care” in running its engines than would be exacted in calm weather, and when vegetation was wet. The trial court signally failed to