
    Hanlon v. Ingram.
    It is the duty of a person setting out fire, to use care, caution, diligence and effort, to prevent injury to others, fand if he is guilty of any negligence, he mll.be liable for any injury resulting frem the fire.
    
      Appeal from the Polk District Court.
    
    This suit was brought by Hanlon against Ingram, for injuries resulting to the plaintiff’s property from the act of the defendant in setting out fire and permitting tbe same to escape, and pass on to tbe premises of tbe plaintiff, and there burn up a large amount of rails and ' other fencing, of tbe ■value of five hundred dollars. Tbe defendant answered, admitting that be set out tbe fire on bis own premises, and that it did escape and run on to tbe plaintiff’s premises as charged; but denying that such fire escaped by reason of negligence or carelessness on bis part, and averring that be did all in bis power to prevent such escape. To this, there was a replication, denying all tbe allegations of tbe answer, inconsistent with tbe petition. On tbe trial, at tbe request of tbe defendant, tbe court instructed tbe jury, “ that the plaintiff, before be can recover, must prove that the defendant was guilty of gross negligence in setting out tbe fire, or permitting it to escape,”' — to which instruction tbe plaintiff excepted. A verdict was returned for tbe defendant. Tbe plaintiff moved for a new trial, on tbe ground of misdirection of tbe jury,, which was overruled, exceptions taken, and judgment rendered for tbe defendant. Tbe plaintiff appeals, and now here assigns for error, tbe. giving of tbe fores instruction. ' • ^\\V
    
      Bates & Finch, for appellant.
    
      J. F. Jewett, for appellee.
   Weight, C. J.

Tbe error assigned and relied upon^sre, is tbe giving tbe instruction above set forth. And this involves tbe question whether tbe defendant was liable, unless be was guilty of gross negligence in setting out said fire, and permitting tbe same to escape. To determine this, it is not necessary to discuss tbe question, whether tbe plaintiff should prove negligence on tbe part of defendant, in tbe first instance, in order to recover; or whether, having established tbe setting out the-fire, the escape of tbe same, and tbe injury resulting, it was not then tbe duty of tbe defendant to negative tbe negligence, that, in tbe absence of proof, might otherwise be presumed. ¥e say it is not necessary, because tbe doctrine here announced is, that plaintiff must not only prove negligence,'but gross negligence, before he could recover. This, we think, was clearly erroneous. Granting that defendant bad a right to set out this fire — that there was no positive wrong in that act — yet it was his duty to have so set it out, and controlled the same, as not to permit injury to the property of his neighbor. And, to say that he would not be liable for injuries resulting, unless he was guilty of gross negligence, would be to protect carelessness and negligence, and to place the property of every citizen at the mercy of the thoughtless, and even vicious. If the act of defendant was illegal, then he is responsible for all consequences resulting therefrom, however much care he may have exercised. If if was legal and permissible, then it was his duty, to use his best efforts, and all reasonable diligence, to prevent the injury. In setting it .out, in any event, it was his duty to have used all reasonable precaution to prevent injurious results. After it was set out, even under prudential circumstances, it was still incumbent on him to prevent its escape, by all reasonable efforts. Unless he did so act with proper caution, he would be liable for the consequences. And it so being his duty to use care, caution, diligence and effort, to prevent injury, it follows, that if he was guilty of negligence, he would be liable, to say nothing of gross negligence. On this subject see Barton v. McClelland, 2 Scam. 434; Johnson v. Barber, 5 Gillman, 425 ; De France v. Spencer , 2 G. Greene, 462 ; Beers v. The Housatonic R. R. Co., 19 Conn. 566.

Would he not be liable in the absence of any negligence, quere t

Judgment reversed.  