Berg v. Great Northern Railway Co.

MITCHELL, J.

The defendant negligently set a fire on its right of way, which spread over the prairie and upon the premises of the plaintiff, Andseth. When he saw the fire coming, he and his hired man, Berg, went out to take measures to save from the approaching fire some haystacks belonging to Andseth and situated on his own land. They went to one stack and burned a firebreak around it, and then went to another stack about sixty rods distant and were attempting to do the same thing there when they discovered that the fire was rapidly approaching them. The fire being then on three sides of them and the land on the fourth side being covered with a heavy growth of dry, grass, they rushed through the fire on a side where the grass had been cut, leaving nothing but the dry stubble, but, in doing so, their persons were quite seriously burned.

These actions were brought to recover for these personal injuries. The court found that the plaintiffs were guilty of contributory negligence, and on that ground held that they were not entitled to recover. The questions presented by these appeals are (1) whether the evidence justified this finding, and (2) whether the negligence of the defendant was the proximate cause of the injuries complained of.

Referring first to the second question, we are of opinion that, leaving out of consideration for the present the question of plaintiffs’ contributory negligence, there was no intervention of another independent agency inflicting the injury, to break the causal connection between the negligent act of the defendant and the injuries suffered by the plaintiffs. It may be true that if the plaintiffs had remained where they were when they discovered the fire approaching, and made no effort to save the stacks, they would not have been injured. But, assuming that they acted with reasonable prudence and care, plaintiffs’ effort to save the property was a mere condition, and -not the cause of these injuries. In making reasonable efforts for that purpose they would be doing, not only what the law authorized, but what their duty to the defendant required; and if, in doing this, they sustained injury, the defendant, which was responsible for the fire, would be liable. Its negligence would be the proximate cause of the injury.

This doctrine has been held and applied under so great a variety of circumstances that we shall only cite two cases in which it has been applied to “fire cases” like the present,—Liming v. Illinois, 81 Iowa, 246, 47 N. W. 66; Rajnowski v. Detroit, 74 Mich. 20, 41 N. W. 847, and 78 Mich. 681, 44 N. W. 335. We have confined the decision to the particular facts of this case, but do not wish to be understood as holding that the rule would be different had plaintiffs attempted to save the property of another.

2. But, as in every other case, if the plaintiffs were guilty of contributory negligence, by rashly, recklessly and unnecessarily exposing themselves to danger in a manner which a reasonably prudent man would not have done under like circumstances, they cannot recover. No fault is* found with what they did after they attempted to escape, but the claim is that they were negligent and even reckless and foolhardy in continuing their efforts to save the stack until all means of safe escape were cut off. We think that, under the evidence, this was a question of fact, upon which the court’s finding cannot be disturbed. The rapidity with which these prairie fires travel, the fitful manner in which they are liable to change their course with every changing gust of wind, are matters of common knowledge and must be presumed to have been known to the plaintiffs as men of ordinary intelligence.

The evidence tends to show that the fire was traveling rapidly, — • faster than the plaintiffs could run, — and that this fact was known' to them; that they made no effort to escape until the fire was in close proximity to them on three sides, and that on the fourth side there was a heavy growth of grass, and consequently to run in that direction would be almost sure death. Their only excuse for remaining so long is that, when they commenced work, the main fire had passed by them; but that there was a change in the wind that suddenly drove the fire back on them. But it is a matter of common knowledge that these changes are of not infrequent occurrence, especially when there is some local agency, such as a large fire, liable to produce atmospheric disturbances. It does not appear that there was anything unusual or extraordinary about this change. If human life or even property of great value had been at stake plaintiffs would have been justified in taking greater risks; but all that was involved was property of comparatively small value. Under all the circumstances we are unable to say that the finding of the court was not justified by the evidence.

Both of the judgments appealed from are affirmed, but statutory costs to be taxed only in one.