or shall willfully or negligently permit any fire to pass from his own woods, prairies, or grounds, to the injury or destruction of the property of any other person, shall be deemed guilty of a misdemeanor, and on conviction thereof shall be punished by a fine not exceeding one thousand dollars, or by imprisonment not exceeding one year, or both fine and imprisonment, in the discretion of the Court; and shall also be liable to the party injured in double the amount of damages sustained.1

The laws of Ohio make it an offense, punishable by fine not exceeding fifty dollars, for any one to willfully and maliciously set fire to "any woods, prairies, or other grounds," other than his own, or to "intentionally permit the fire to pass from his own prairie or grounds, to the injury of any other person or persons, and any person who may so offend is made" liable to an action of the party injured, for the damages which he, she, or they may have sustained in consequence of such fire.2

In the several criminal codes are to be found provisions making the firing of woods, prairies, and lands, or negligently allowing fires to spread from a person's own lands upon those of his neighbor, misdemeanor or crime, and as such imposing punishment by fine or imprisonment, or both.3

§ 59. A trespasser responsible for damage by fire.—A trespasser who sets fire to land is responsible for the damages which result, as the proximate consequences of his act, not only to the owner of the land on which the fire begins, but also to all other persons; and so of any one who either wrongfully or negligently sets fire to land which does not belong to or is not in his possession; he must respond for such damage as he has thereby caused. And even if a person be rightfully in the highway, traveling or driving stock, and he makes a fire upon or near the ground of another for a necessary purpose, but fails to take due precaution to guard against the fire spreading, he must answer for loss of property occasioned by the fire.

1 Compiled Laws Mich. 1871, pp. 2143-4.

2 Revised Stats. Ohio, Vol. 1, p. 432.

These statutes are, generally speaking, rather to be regarded as substantial affirmations of the common law than as abrogating it, and entire reliance upon the statutes would be unwise. (Hewey v. Nourse, 54 Me. 258.)

Finley v. Langston, 12 Mo. 120.

FARM-5.

§ 60. Liability of hunter or traveler for damage by fire. -If a hunter or traveler negligently starts a fire upon wild lands or prairie, he is liable for all property destroyed by the flames. But as it is often necessary to kindle fires upon wild lands and upon prairies, fighting fire by fire is sometimes the only means at command for self-protection. The fact that fire was willfully kindled is not conclusive evidence to establish the liability of him who set it for damages which result from its spread; but the fact being established of a man's having set fire to land which was not his own, or in his possession, the burden of proof is upon him to show that he had good cause for so doing, and he must take the affirmative upon and establish that fact before he can avoid the liability; and he must also show that he used due care and diligence to prevent the spread of the fire.1

§ 61. Damage by fire from steam-thresher. The right to use such agencies as may occasion loss to another, or are dangerous, cannot be seriously questioned. There are no results which can be attained without some risk, and it would be as injudicious to question the right to use horses to haul produce to market, because they might run away and cause injury, as to call in question the right to employ steam-engines to work threshers. Neither can any precise rule of care in the use of

1 Clelland v. Thornton, 43 Cal. 437. This was an action for damages. The complaint was that the defendant, while driving a herd of sheep through the country, encamped near plaintiff's premises, and carelessly left fires burning, which, after defendant's departure, got out and spread to plaintiff's land, and there destroyed his buildings and other property. Held, that where a party makes a fire for necessary purposes, upon or near the grounds of another, and negligently leaves it, with combustible material about it, and the fire spreads and destroys adjacent property, the party building the fire is liable for the damage done.

The rule is thus laid down in the latest standard work on negligence: "When fire is lawful, burden on plaintiff to prove negligence; but otherwise with unlawful fires. Fire, like water or steam, is likely to produce mischief if it escapes and goes beyond control; and yet it has never been held, in this country, that one building a fire upon his own premises can be made liable, if it escapes upon his neighbor's premises and does him damage, without proof of negligence. But the rule is otherwise when the fire is unlawful, in which case the burden is on the defendant, after proof of the unlawfulness, to defend himself by proving casus. Eminently is this the case with fire started on prairies, or other wild lands, where the devastation is likely to be so terrible." (Wharton cu Negligence, Sec. 867.)

such engines be prescribed, and there have been no instances in which the limit of approach toward straw stacks, fences, or buildings have been fixed at which such engines could be worked.

Steam being generated by heat, and there being no known means of producing combustion without a draught of air, which carries off sparks from the fuel, the emission of sparks from the smoke-stack of a steam-thresher is not of itself illegal. The law, in conferring the right to use an element of danger, protects the person using it, except for an abuse of his privilege. But, in proportion to the danger to others, will arise the degree of caution and care he must use who exercises the privilege. Great danger demands higher vigilance and more efficient means to secure safety; where the peril is small, less diligence will suffice.

It is undoubtedly the duty of him who operates an engine in a dry grain field, where his machine is surrounded by combustible matter, to use the utmost possible vigilance and foresight to avoid fire getting out and consuming property of value.

The use of the steam-thresher and similar agricultural implements1 symbolize enterprise and attest the march of civiliza tion; and invoking, as we must, to their appreciation the talent and understanding in which they had their origin, we should subject those who use such implements to an appreciation of the appliances for safety which a coeval employment of ingenuity and talent have placed at their command. It is, therefore, the duty of those who use these hazardous agencies to control them carefully, to adopt every known safeguard, and to avail themselves, from time to time, of every approved invention to lessen their danger to others.2

As to the precise meaning to be attached to such descriptive terms as "agricultural implements,” some doubt might be entertained as to whether a steam-thresher could properly be classed in that category; but in the English statutes, 14 and 15 Vic. Chap. 38, Sec. 4, and 3 Geo. IV, Chap. 126, Sec. 36, it was enacted that the words implements of husbandry should be deemed to include threshing machines, and in Regina v. Matty, 27 L. J. (N. S.) Q. B. 222, the steamengine which pertained to a steam-thresher was held to be an implement of husbandry within the meaning of the statutes mentioned, so as to render it exempt from payment of toll.

2 Tally . Ayers, 3 Snead, (Tenn.) 677; Shearman & Redfield on Negligence, Sec. 322; Brand v. Hammersmith R. Co. Law Rep. 4, H.L. 171; Rood v. N. Y. &

§ 62. Evidence of negligence in use of steam-thresher. -These principles are abundantly supported by authorities, and are founded upon justice, but difficulties may arise in their practical application. Questions of skill, vigilance, care, and proper management in the business of running such machines, may become matter of controversy, as they may, for that matter, in any business, and such questions so entirely depend upon the circumstances of individual cases that no general rule can be given. All of this class of questions must be submitted to the jury, to determine from the circumstances what was due care, and whether or not it had been exercised. The solution of these questions depends upon the facts of each case. What is care in one case may be negligence in another, where the danger is greater and more care is required. The degree of care having no legal standard, but being measured by the facts that arise, it is reasonable that such care must be required which it is shown is ordinarily sufficient, under similar circumstances, to avoid the danger and secure the safety needed. Ordinary care is, therefore, the only rule which can be stated as that for a lack of which the proprietor of a steam-thresher can be made liable in damages. But, as the degree of care is measured in every case, or class of cases, by the surrounding circumstances, that which is ordinary care in a case of extraordinary danger would be extraordinary care in a case of ordinary danger, and that which would be ordinary care in a case of ordinary danger would be less than ordinary care in a case of great danger. Hence, as the nearest possible approach to a general rule, it results that those who avail themselves of these improvements and labor-saving machines, which, for their primal motor, must rely upon so dangerous an element as fire, should be held, as a rule of ordinary care, to the employment of constant vigilance, and the use of the most approved meth

E. R. R. 18 Barb. 80; McCready v. S. C. R. R. 2 Strobh. Law, 356; Vaughn v. T. R. R. 5 Hurlst. & N. 679; Reading v. Yeiser, 8 Penn. St. 366; Frankford v. P. & T. R. R. 54 Penn. St. 345; I. C. R. R. v. Mills, 42 Ill. 407. The owner of a steamthresher cannot be held responsible for injuries arising through the negligent use or management of his property by one who has placed himself in such position that as to him the owner owes no duty. (Keefe v. R. R. Co. Sup. Ct. Minn. January, 1875.)

ods for, and appliances to be used in, guarding against the of fire.1

escape

§ 63. Proprietor of steam-thresher must use appliances to avoid escape of fire.-The necessity of using particular appliances to prevent escape of fire is a question of fact for the jury; and where the testimony as to the value of particular improvements is conflicting, the question of whether or not the party who runs the machine should avail himself of it in order to exercise due care, has been held to be a question for the jury to pass upon as one of fact.2 And if such appliances as experience has shown to be beneficial are upon the machine, the one who runs the engine must, at his peril, see that they are kept in use, and whether he has done so or not is especially for the jury to determine.3

1 "A person who takes reasonable care to guard against accidents arising from ordinary causes is not liable for accidents arising from extraordinary ones." (Blyth v. B. W. Co. 2 Jur. N. S. 333; 11 Exch. 781; 25 L. J. Exch. 212.) The general rule is that, being authorized to so use fire to make steam, the owner of the machine is not liable unless he exercise the right carelessly. Accidents may, however, be of such a nature that negligence may be presumed from the mere fact of the accident. (Byrne v. Boadle, 33 L. J. Exch. 13; 9 L. J. N. S. 450; 2 H. & C. 722; 12 W. R. 279.) And if all the usual or needful appliances to prevent the escape of fire are used, and all due precaution exercised, still the owner of the machine is liable if the fire occur by reason of his so overcrowding his engine as to render inoperative the appliances used to prevent the escape of sparks, and by reason of such conduct the fire is set. (Hyett v. Reading R. R. Co. 23 Penn. St. 373; Jackson v. Chicago Etc. R. R. 31 Iowa, 176; Toledo R. R. v Pindar, 53 Ill. 447.) The owner of the machine, however, is not to be held liable when a fire occurs, nor does a presumption of negligence arise because he had not on his machine the latest invention to prevent escape of fire. It might well occur that many inventions are of little or no value, and the person who used them might in so doing depart from usual and better precautions in relying upon a new plan or appliance. But if it appear that an invention had come into general use, and had been found to be a means of avoiding the danger, and been generally approved of by those who made use of it, the owner of the machine ought to employ the agency at his command to avoid danger, and he neglects to do so at his peril. (Shearman & Redfield on Negligence, Sec. 332; Frankford v. P. & T. R. R. 54 Penn. St. 345.)

"Ordinary diligence is no fixed and unalterable standard of care: it is always to be determined by the facts and circumstances of each case; and when the circumstances are such as to indicate increased peril, it would require greater watchfulness to constitute ordinary care than under circumstances of less peril." (Murphy v. R. R. Co. 38 Iowa, 539.)

2 Freemontle v. L. & N. R. R. 10 C. B. (N. S.) 89; Jackson v. C. R. R. 31 Iowa, 176; Dimmock v. N. S. R. R. 4 Fost. & F. 1058.

3 Anderson v. Cape Fear Steamboat Co. 64 N. C. 399; Rolke v. C. R. R. Co. 26 Wis. 537.