
    Hanlon v. Ingram.
    A person setting out fire on bis own premises, who uses suoli care and diligence to prevent it from spreading, as a man of ordinary caution would employ to prevent it from injuring his own property, is not liable for the damage which it may do to the premises or property of others.
    
      Fe France v. Spencer, 2 G. Greene, 462, cited and followed.
    
      Appeal from the Polk District Court.
    
    This was an action to recover damages resulting to plaintiff, from the act of defendant in setting out fire, and permitting the same to escape, and pass on to the plaintiff’s premises, and burn up a large amount of rails and other property. The defendant admits, that he did set out said fire, and that it escaped from his own premises on to those of plaintiff, but denies that it was through any carelessness or negligence on his part; and avers that he did all that was in his power to prevent said escape. On the trial, the plaintiff asked the court to instruct the jury as follows: “ That if the jury are satisfied from the evidence, that the defendant set out fire upon his own land, and it passed from the defendant’s land on to the plaintiff’s land, and his property was burned up and destroyed, the defendant is liable to pay tbe damages thus inflictedwbicb instruction was refused, and plaintiff excepted. Yerdict and judgment for defendant, and plaintiff appeals.
    
      Curtis Bates, for the appellant.
    
      J. F. Jewett, for tbe appellee.
   Weight, C. J.

This case was before us at tbe last June term of this court. Then it appeared that the District Court bad instructed tbe jury, that plaintiff could not recover, without proving that defendant was guilty of gross negligence in setting out said fire, or permitting it to escape. This instruction was held to be erroneous, and tbe cause remanded for a new trial. It now appears from tbe foregoing instruction, that plaintiff claimed that defendant was liable, if be set out tbe fire, without reference to tbe question of negligence, or however much care, or caution, be might have taken in setting it out, or in preventing its escape.

If this was an open question in this state, we should have some hesitation in saying, that tbe refusal to give this instruction was correct. In De France v. Spencer, 2 Gr. Grreene, 462, however, this very question was before tbe court, and tbe giving of a similar instruction held to be erroneous. In that case, tbe court below instructed tbe jury, that, “ be who voluntarily sets out fire on bis own land, is responsible for tbe damages done by its spreading upon tbe lands of others, even though be uses due diligence to restrain it.” In considering this instruction, Kinney, J., in delivering tbe opinion, says: “ But where, from good motives, and under prudential circumstances, a person sets fire to bis prairie, or woods, and uses such care and diligence to prevent it from spreading, as a man of ordinary caution would use to prevent it from injuring bis own property, be is not liable for tbe damage wbicb it may do to tbe premises or property of others. Ordinary prudence and honest motives in setting out tbe fire, and due diligence in preventing it from spreading, axe all that is necessary, and will constitute a good defence to an action for damages.” This case is a decision of the question -before us. There are several authorities sustaining the same view. In addition to those cited in this case, see Pardon v. Holland, 17 Johns. 92; Platt v. Johnson & Root, 15 Johns. 213; Thurston v. Hancock, 12 Mass. 220; Harding v. Fahey, 1 G. Greene, 377; Livingston v. Adams et al., 8 Cowen, 175. Others, again, hold the contrary doctrine, and sustain, either partially or entirely, the instructions asked by the plaintiff. Johnson v. Barber, 5 Gilm. 425; Burton v. McClellan, 2 Scam. 434; Stout v. McAdams, 2 Ib. 67.

It will thus be seen, that the courts of other states differ on the question involved, and under such circumstances, we follow the ruling heretofore made in our own courts. As a question of expediency or policy, it may well be doubted, whether the contrary rule would not give greater security to property, and more effectually guard the rights of premises injured, from fire, set out by others, and other acts lawful in themselves, but which reasonably may, and in too many instances do, result in such calamitous consequences. But, we suppose that in the case of Be France v. Spencer, supra, the court had regard to the topography of our state —the fact that the setting out of fire was necessary, very frequently, in order to properly open farms and carry them . on, and that such right had been recognized by legislation,, from the earliest days of our territorial existence. All these, and other considerations, were eminently proper to* be weighed, and no doubt had their appropriate influence. In view of these circumstances, therefore, we adhere to the ruling there made, and hold that the instruction asked was properly refused.

In view of the frequent instances of heavy losses from fire, so set out, we will add one other thought before closing this opinion. Each case must stand to a great extent upon its own circumstances. The liability depends upon a question of care and diligence, or negligence and want of care. Whether there was such care or caution as should excuse, or such negligence as fixes the liability, is a question of fact for the jury — the measure of negligence, or diligence, first being defined by the court. In all oases, jurors cannot be too careful in requiring defendants to use strict caution, and great diligence, in setting out their fires, and preventing their escape. All of the circumstances should be carefully weighed, and, unless they disclose, with reasonable certainty, that in setting out the fire, and preventing its escape, the defendant has not used those precautionary measures, or made use of those measures which, as a prudent and cautious man, he would with reference to his own property, they should hold him liable.

Judgment affirmed.  