dissenting:
If this is a case for the jury at all, I agree that it was properly submitted and that the judgment should be affirmed. It does *93not seem to me, however, that appellant was not guilty of any negligence for which it should be made answerable in damages. The standard of care required in order to sustain this action is higher than the law has imposed upon a defendant up to the present time in any similar case. The appellant company is not charged with failure to perform any duty it owed its employees, its passengers, or the public in the operation of its line of street railway. The relation of common carrier and passenger, or of master and servant, did not exist between the parties. The rule adopted in this case must necessarily have general application to the farmer, mechanic, laborer, and every other citizen of the commonwealth who finds it necessary or convenient to occasionally burn brush or rubbish on the highway or upon open lots. I concede that in such cases the duty of reasonable care rests upon the person who starts the fire in order that no injury may recklessly or negligently be inflicted upon the person or property of others. But to my mind, this duty has been met when a person charged with negligence under such circumstances shows that his servant while burning some waste paper on an open lot stood by the little fire until the flames died out, the paper was burned to embers, and only the smouldering ashes remained to mark the spot where the fire was started, and that is this case. To go further and hold that it was his duty to foresee and provide against the possible contingency that a child might stray that way, fan the smouldering ashes into a burning ember sufficient to light a piece of paper held in her hand, from which her clothing took fire and serious injury resulted, is to place upon a property owner, or citizen, a standard of care higher than the law should require in dealing with the customs and usages of people in the practical affairs of everyday life. The custom of burning waste paper, rubbish, brush or leaves at the roadside or upon open lots is as old as our law and as widespread as our commonwealth. In my opinion it is error to apply to such cases the rule which requires the very highest standard of care to be exercised by those having the control and supervision of dangerous agencies such as electricity, natural gas, deadly explosives, and other natural or mechanical forces with which the people are not familiar and *94from the dangers of which they cannot protect themselves. What everybody has done for a century certainly should come within the rule' of usual and ordinary care. Under such a rule there could be no recovery in this case. It is true the open lot did not belong to appellant, but it is equally true that it did not belong to appellees. Both parties stood upon an equality so far as the use of the lot is concerned. The evidence shows it was the customary place to burn waste paper, also that children frequented it. No question is raised by the lot owner as to the right of appellant to burn waste paper upon the premises. It must therefore be assumed for the purposes of this case that appellant had a right to do what was done, and the only question that can arise is whether it was done in a negligent manner, as to which all that has been heretofore said applies. There is an unwholesome tendency to extend the law of negligence in every possible direction and to all kinds of occurrences until we have reached the point of applying the doctrine to injuries received from accidents resulting from the practices of everyday life. It may be and nó doubt is difficult to draw the line of distinction between cases for which there should be responsibility in damages and those in which there should not be. But, in determining the proper rule applicable to such cases, the natural and necessary risks and dangers incident to the affairs of men in organized society which everyone must assume in consideration of the privileges he enjoys by his association and in his dealings with his fellow men, must be an important factor. There are many unfortunate accidents resulting in serious injury to persons, but it will not do to say that someone must be answerable in damages because of sympathy for the injured person when the evidence shows that the party sought to be charged only did what was usual and customary under the circumstances surrrounding the accident. A single verdict against a farmer, or mechanic, or small property owner, might sweep away the frugal earnings of a lifetime, while in point of fact nothing was done except what had been a general custom in the neighborhood.
As I view this case it was not the duty of appellant, nor would it be the duty of any other owner of property, to foresee and *95provide against the contingency that did happen, and therefore the injuries complained of were not the result of any negligence for which the law makes the offending party liable.
I would reverse the judgment.