We must assume from the record before us that the defendants, during a dry time, and when a high wind was blowing, negligently started a fire on the lands of the railroad corporation represented by them as its receivers, and that such fire spread in a continuous and direct line over woodlands belonging to several proprietors for a distance of about two miles to those of the plaintiff, and there destroyed fences and standing timber, belonging to her, worth seventy-five dollars. All the lands burned over were forest lands, except those of the railroad company, which consisted simply of the usual strip for a right of way. As one of the witnesses testified: "Between the origin of the fire and Mrs. Hoffman's line it was a continuous line of wooded land. The fire burned pretty rapidly the whole distance. The grounds in that distance were covered with brush of all kinds about and leaves, tree tops and limbs, and that extended clear through to the land of Mrs. Hoffman."
The main question presented for decision is whether the damage done to the plaintiff's property was the natural and proximate result of the defendant's negligence? If it was, it is conceded that she was entitled to recover, but if it was not the defendants must prevail.
The trial judge charged that even if the defendants were *Page 630 negligent, still the jury could not find for the plaintiff unless the destruction of her property "was the natural and direct effect of such negligence." As there was a verdict for the plaintiff and the judgment entered thereon has been affirmed by the Appellate Division, but not unanimously so far as the record shows, if the evidence according to any reasonable view thereof sustains the finding, it is conclusive upon this court, provided the question of proximate cause was one of fact. Even when there is no conflict of evidence, if diverse inferences may be drawn from the conceded facts, the question is for the jury.
The defendants, however, contend that as the lands of the plaintiff did not abut upon those of the railroad company, the question of proximate cause is purely one of law. Their main reliance is the case of Ryan v. N.Y.C.R.R. Co. (35 N.Y. 210), where it was held that a railroad company, which negligently set fire to wood in a shed on its own land, and the fire spread to and destroyed a dwelling house on the lands of another immediately adjoining, was not liable to the owner because the negligent act was not the proximate cause of the loss. This case has been criticised, distinguished, and to some extent, at least, overruled. It cannot now be regarded as in all respects the law of the state, because it is well established that one who negligently sets a fire upon his own premises, which spreads to the premises immediately adjoining and destroys the property of another thereon, is liable to the latter for the damages sustained by him. (Webb v. R., W. O.R.R. Co., 49 N.Y. 420.)
In deciding the case last cited the court, referring to theRyan case, said: "In the disposition of the case before us we are not to be controlled by the authority of the case in 35 N Y more than we are by that of the long line of cases which preceded it, and which have been herein cited and adverted to. * * * It is proper, however, to say, that it is not necessary in this case to differ from or to question the reasoning in that case, which fortifies the conclusion there reached by a consideration of the relations of men to each other in *Page 631 populous cities and villages, and the disastrous consequences to follow from holding one liable for his own or his servant's negligence by which a fire is kindled in his house which spreads to the property of one or more neighbors. * * * If in a time of extreme drought and high wind there be laid or suffered to gather a train of readily combustible matter up to the bounds of another's property, it is not to be denied but that it is an act of negligence to drop fire at the hither end of that train; nor but that it is an ordinary, a usual, a necessary result, reasonably to be expected, that the fire will run from particle to particle through it, and catch in whatever will burn which is adjacent at the thither end." The Ryan case was further criticised in Pollett v. Long (56 N.Y. 200, 206), and distinguished in Lowery v. Manhattan Ry. Co. (99 N.Y. 158,166). In Reed v. Nichols (118 N.Y. 224), where there was a verdict for the defendant, the court referred to it as distinguished but not overruled. That was not a case where woodlands were affected and a second cause intervened between the start and culmination of the fire.
In Frace v. N.Y., L.E. W.R.R. Co. (143 N.Y. 182) it was further considered. In that case the property destroyed was a barn, which first caught fire, and a hotel about forty feet distant therefrom. The trial judge charged that to justify a verdict including the value of the hotel, the jury must find that it was destroyed by reason of the fire being communicated thereto directly from the engine, or without the assistance of other agencies. In reviewing the case this court said: "We think the charge of the learned judge upon this part of the case was asfavorable to the defendant as it could properly ask. The question was left as one of fact, under all the circumstances, as to whether the burning of the hotel were not the natural and direct result of the sparks from the engine. In this case the court committed no error to the prejudice of the defendant. TheRyan Case (35 N.Y. 210) should not be extended beyond the precise facts which appear therein. Even if correctly applied in that case, the principle ought not to be applied to other facts." *Page 632
In O'Neill v. N.Y., O. W. Ry. Co. (115 N.Y. 579) sparks from a locomotive passing on defendant's road set fire to brushwood, old rails and other combustible materials which it had allowed to accumulate on its lands, and the fire spread to the lands of another and thence to plaintiff's lands. It was held that the plaintiff was entitled to recover, the court saying: "It is also said by the appellant that `the damages are too remote.' The proposition is put upon the ground that the plaintiff's lands did not lie next to the railroad, but, were separated from it by the lands of another. That circumstance is in the case, but no allusion was made to it upon the trial as a ground of defense, and it is conceded by the learned counsel for the appellant that the point now presented was not raised in the trial court. It, therefore, cannot be listened to. * * * But the appellant urges that the objection, if made at the trial, could not have been obviated, and, therefore, claims that it may be raised at any time. The fact that land of a third party intervened between the woodland of the plaintiff and the defendant's road cannot be doubted, but that alone is not decisive. Other circumstances would control, and, if not already apparent in evidence, we cannot say that further testimony would not have shown that the result was to have been anticipated from the moment fire dropped upon the defendant's premises, and that the destruction which happened to the plaintiff's property was the natural and direct effect of the first firing. If so, it was not remote. (Vandenburgh v. Truax, 4 Den. 464; Pollett v. Long,56 N.Y. 200; Webb v. R., W. O.R.R. Co., supra.) Ryan's Case (35 N.Y. 210), relied upon by the defendant, is sufficiently commented upon in the last two cases cited, and is not analogous to this case as now presented. The origin of the fire, upon the evidence and the verdict of the jury under proper instructions from the court, is to be attributed to the defendant, and to have been occasioned by its negligence. By its negligence, therefore, the fire which burned the plaintiff's woodlands was set in operation. The fact that it reached those woodlands by first burning the brush and other articles on *Page 633 other land, furnishes no new cause to which the injury can be ascribed." The judgment was affirmed and the recovery sustained.
The question now before us was treated as before the court in that case, and it was reviewed and apparently decided. It is so stated in the head note and the case has been generally regarded both by the courts and by the legal profession as settling the law other than as it was laid down in the Ryan case, at least so far as woodlands are concerned. (Brush v. Long Island R.R.Co., 10 App. Div. 535, 540; Brown v. Buffalo, R. P.R.R.Co., 4 App. Div. 465, 469; Martin v. N.Y., O. W. Ry. Co., 62 Hun, 181, 184.)
There is some reason for a distinction between woodlands and buildings crowded together in a city, because in the latter case there are facilities for putting out fires and the damages from a conflagration might be so overwhelming as to prevent men from investing in city property, which would affect the general welfare of the country. In populous places an arbitrary rule, founded upon division lines, may be necessary when a broad view of the subject is taken, in order to prevent ruin to the owners of real estate. Such a rule, however, must exist owing to necessity rather than logic, for it would make one who negligently kindled a fire on his own premises liable to the owner of lands immediately adjoining, even if his building extended one hundred feet, but not to several owners of different buildings upon precisely the same land. It is impossible to say logically that the first hundred rods of woodland burned over, if owned by one man, must be paid for, but not if owned by two or ten men. If the fire in question had burned a hundred trees, extending directly from the railroad land in a straight line, one rod apart, for a hundred rods, all owned by one man, the defendants would be liable for the whole loss; and if the same man had owned all of those trees except the first it would be unjust and unsatisfactory to hold that he could recover nothing. If the plaintiff had owned the entire territory burned over, the defendants would be bound to pay all the damages, and the mere fact that there *Page 634 were several proprietors should not prevent a recovery by any except the abutting owner.
Arbitrary rules should be strictly limited to the peculiar facts which render them necessary and should not be extended to cases which may be decided upon reasonable and logical grounds. There is no necessity for such a rule in the case of forest lands, because they are not so valuable as to threaten ruin to the owner, and facilities for extinguishing fires are so meagre as to make it probable that a fire once started therein will run until arrested by some natural or artificial cause. Where the forest is continuous, with inflammable material spread uniformly over the land, and the fire extends in a direct line through it over the lands of several owners, even for a long distance, what intervening cause is there between the starting of the fire and the destruction of the last property burned? Why is not the destruction of the last piece of property the direct result of the defendant's negligence in starting the fire? Where a fire burns continuously, feeding upon materials of the same kind throughout its course, without any secondary or intervening cause, the last part burned is not the remote but the natural and probable result of the fire when first started, or at least it is within the power of a jury to so find. It was possible for the jury in this case to conclude that each link in the chain of cause and effect, from the setting of the fire to the destruction of the plaintiff's property was, according to common experience and the ordinary course of events, the reasonable and natural result to be anticipated. Each separate tree or heap of brush was not an intervening but a continuous cause, the same in principle, but not in degree, as if cordwood had been piled the entire distance. In that case would division in the ownership of the wood or of the land on which it stood divide responsibility? When fire is dropped at one end of a train of inflammable material, during a high wind and in a dry time, it is natural to expect that it will burn through to the other end unless interfered with in some way. That is the ordinary result and the one to be anticipated by a reasonable man. The wind and drought *Page 635 are not intervening causes, but are the conditions surrounding the one who sets the fire and are presumed to be in his mind when he contemplates the probable result of his act.
The trial judge properly left it to the jury to find whether the destruction of the plaintiff's property was the natural and direct effect of negligence on the part of the defendants. It was for the jury to take into account all the circumstances, including the distance the fire ran before it reached her property, and decide whether it was the proximate cause of the injury. Mere distance has nothing to do with the question, except as it bears on the probability "that no intelligent man could have apprehended injury as the result of the negligent act." If the distance traversed by a fire is so great that the most remote part was not within the reasonable contemplation of the one who started it, the jury should be instructed accordingly, but in all ordinary cases it is for them to decide, under proper instructions from the court, whether the damages were the direct and natural result of the negligent act or not.
I find no error in this record that calls for a reversal, and I, therefore, dissent from the conclusion reached by a majority of the court and record my vote in favor of affirmance.
GRAY, O'BRIEN, BARTLETT and MARTIN, JJ., concur with HAIGHT, J., for reversal; PARKER, Ch. J., concurs with VANN, J., for affirmance.
Judgment reversed, etc.