I concur with the chief justice that there was no error in the (rulings of the court below.
Paine, J.Unless a railroad company is hound to keep its entire roadway free from grass or other matter naturally growing upon it, which, when dry, would he combustible and liable to ignite by sparks or coals from the engine, I think there was no evidence of negligence in this case upon which to submit the question to the jury. The legal question, therefore, is, whether such an obligation rests upon the company. Where the facts are undisputed, the question what amounts to negligence is one of law. And a court cannot in such a case, while declining to take the responsibility of saying that the facts show negligence, refer it to the jury and allow them to say so. That is allowing the jury to decide the legal question.
I think there is no material dispute as to the condition of the roadway at the spot where the fire was kindled. It was on a marsh, and there were some willows and high grass between the track and the line of the right of way. They had grown there naturally, and no combustible material had been placed there by any artificial means, And the only *242negligence was in not removing, by some means, this natural growth of grass and weeds and brush. I do not think, upon the facts here presented, that this was negligence. I will not deny that a case might be supposed where it would be negligence not to remove such combustible matter. But it would be a case where the obligation would grow out of the peculiar surroundings and the fact of the practicability of such removal without extraordinary and disproportionate effort and expense. Thus, if there were valuable property in the immediate vicinity, which would naturally and probably be destroyed, if a fire should accidentally be kindled in such dry grass, and it was practicable to remove it so as to prevent that probability by reasonable effort and care, it might be negligence to suffer it to remain. But there were no such surrounding circumstances here. There was nothing to suggest the probability of a loss arising from a fire occurring at this spot any more than there would be at any spot along the road. The plaintiff’s property that was destroyed was about a half a mile distant. To reach it, the fire had to run over about sixty-five rods of marsh that had been mowed by the plaintiff, crossing on its way a small brook; and then run over stubble-fields the remainder of the distance. It was improbable that a fire, if kindled, would spread to such a distance over such ground. And it would doubtless not have done so, except for the unusual drouth and the occurrence of a very strong wind. I can therefore see no reason for submitting to the jury the question of negligence in leaving the dry grass in the roadway where this fire originated, unless it is negligence in law for a company to leave any dry and combustible material on any portion of its right of way. That such is the law, I cannot hold. It is true that, although an extreme drouth is not the ordinary condition of things, yet it sometimes occurs — although there is not generally a high wind blowing, yet there *243frequently is. And if the possible concurrence of these two events with a fire kindled on defendant’s road without any negligence on its part, except leaving on the side of it the grass and weeds naturally growing there, made it negligence to leave them there, then it must be negligence for any railroad company to leave any combustible material anywhere on its right of way. Such a rule would be unreasonable. It would be so because it is impracticable to keep the line of a railway free from matter which, in a drouth, would be combustible, without an effort and expense that would be so great as to be intolerable. The ground on either side of the track to the line of the right of way is generally rough and broken, so as to make it impossible either to plow or to mow it in such a manner as to prevent the presence of dry grass and weeds. In marshes the surface is generally so uneven that it cannot be mowed closely enough to prevent leaving a considerable amount of grass, which, in a drouth, would be combustible. This the evidence of the plaintiff in this case clearly shows. He had mowed a large part of his marsh adjoining the spot where the fire originated, and yet he testifies that the fire ran more rapidly over that grass stubble than it did over his grain stubble. I do not believe, therefore, that it would be possible to keep the line of a railway free from combustible matter without the constant employment of a large force for that purpose, and in many places constantly digging up the surface of the ground by hand labor. Such an obligation would be disproportionately burdensome and oppressive. It would be much more reasonable, as has been done in some states, to pass a statute making the companies absolutely liable for all damages by fire originating from the engine within certain lirfiits, and giving them an insurable interest in all property for which they would be liable.
Companies are justly and reasonably held to the *244use of great vigilance in the management of their engines, and to procure the most approved means for preventing accidents by fire. But after they have done this, to say that they must go so far as actually to keep their entire roadway free from dry grass, weeds, leaves and other combustible matter, or else be held guilty of negligence, is, I think, unreasonable and extravagant. I cannot see why the same reasoning would not require them to build iron or stone fences and buildings along their road, because wooden fences and buildings are combustible, and, as everybody knows, are frequently set on fire. The answer to such a requirement is, that although fires sometimes happen in that way, yet they are the exception; and therefore, unless there are special circumstances suggesting an unusual necessity for such extreme caution, it is not negligence for the companies to use the ordinary fencing and building material. And the same answer is applicable to the grass • and weeds growing on the road.
But if this is not so, if to leave them on the roadway constitutes negligence, necessarily, in the company, I am at a loss to see how the same facts cease to constitute negligence as soon as you pass the company’s line, and get on to the land of the adjoining proprietor. Can it be negligence for the company to leave grass and weeds on its line, because if a fire should occur there it might run through the grass and weeds on the adjoining proprietor’s land, and. reach his buildings a half a mile distant, and yet no negligence at all for that proprietor, knowing all the facts, to leave the same kind of grass and weeds on his land, by means of which alone could the fire do him any serious damage ?
I do not think, upon the facts here presented, there was sufficient ground for imputing any negligence to the plaintiff. On the contrary, the probability of damage in case a fire should occur at the spot where *245this originated, was so slight, that no negligence ought to be imputed to the company or the plaintiff. But they stand or fall together. The same reasoning that finds one guilty of negligence, necessarily convicts the other. They were both confessedly guilty of the same acts or omissions — that is, suffering dry grass and combustible matter to remain on their land in a dry time and in a strong wind. If, therefore, it was negligence in one, it was in. the other. And as the facts were undisputed, the same rule which would hold the company guilty would prevent a recovery by the plaintiff, on the ground of contributory negligence, unless in such cases the general, well-established rule that contributory negligence of the plaintiff, producing the injury, prevents a recovery, is wholly inapplicable. That rule is uniformly applied in all cases of other injuries caused by railroad companies, and I know of no reason why it should not equally be applied here. Thus, it would' hardly be maintained by any one that, in such a case, after the fire had started, the owner could stand idly by, with the means of preventing its spread, and, without using them, allow it to run across his fields and consume his buildings and other property, and then recover. It would clearly be a want of ordinary care and prudence to neglect then to use such means. Suppose this fire had occurred when there was no wind, and yet that it might have run across the plaintiff’s stubble and reached his barn, unless he had taken means to stop it. Suppose he could, by plowing a few furrows along the edge of his stubble field, have stopped it, and he had ample time to do so, would he not have been bound to do it ? I think so, clearly, even though the fire had been caused by the actual negligence of the company in not using proper means to prevent its escape from the engine. And if this is so, it shows that the adjoining owner is not absolved from the general duty devolving upon every one to use ordinary care and prudence to avoid *246and prevent injury from the negligence of others. Where he is thus placed in the presence of a fire kindled by the negligence of the company, his obligation to use such reasonable means of prevention of damage as are within his reach, is clearly illustrated, and the fact of negligence, if he should neglect to use them, is very apparent. It is true that in such a case he could not be charged with negligence for not having resorted to means of prevention before the fire occurred, because he would not be bound to anticipate the negligence of the company in kindling the fire. Where such negligence consists in the improper construction or management of the engines, no’ one can foresee when or where the fire will occur. The owner, in such case, has nothing to put him upon his guard, so as to require any unusual precaution until it is actually kindled. But the same answer cannot be made here. Here there was no negligence in the management or construction of the engine. All the most approved means for preventing fires were used. The negligence consisted wholly in leaving combustible grass and weeds on the roadway in a dry time. This the plaintiff knew; he saw it. He had ample opportunities to take measures to guard against damage from it; but, instead of doing so, he was himself guilty of the same negligence by leaving the same combustible matter on his own land. It seems to me, therefore, that when it is once established that it is negligence for a company to leave dry grass and weeds on its roadway, and they are so left, and the fact is known to the adjoining owner, he is then in the same position as he would be if a fire had been kindled on or near his premises, in respect to his obligation to use reasonable care to avoid injury. He sees, in both cases, the negligence of the other party, and the danger to himself. And I know of no reasoning upon which he could be held bound to use such precautionary measures as ordinary care and prudence would *247suggest, to prevent injury to himself from such negligence in the one case, which would not be equally applicable to the other.
I do not believe that the owners of lands adjoining railways are bound to keep their lands clear from dry grass and weeds, or other combustible matter, under penalty of being chargeable with negligence. I do not hold that they are bound to discontinue the ordinary beneficial use of their property, even though such use might increase somewhat the hazard from fire. That was the principal of the decision in Martin v. W. U. R. R. Co., 23 Wis. 437, in which I fully concurred. But it by no means follows that no act of such owners can be negligence, merely because it is such as they have a legal right to perform on their own lands. Thus, suppose such an owner, having plenty of room to stack his hay and grain elsewhere, should stack it all immediately adjoining the railway. Would it not be a plain act of negligence ? It seems to me so, and that it cannot be said that such owners may invariably act as though no railroad was there, without being guilty of negligence. On the contrary, I think they furnish no exception to the general rule, that all persons are bound to use ordinary care to prevent injury from negligence of others. And so soon as it is established to be negligence in a railroad company to leave the dry grass and weeds upon its land, because, if a fire should occur, it might run across the adjoining owner’s stubble-field, and reach his buildings, it follows necessarily that if plowing a narrow strip on those fields would prevent the loss, and he, after knowledge of the danger, neglects to plow it, he should be held guilty of a want of ordinary care. To say that he should have taken that precaution does not deprive him of the ordinary or beneficial use of his property. It does not impose upon him any burden or serious inconvenience. It is usual for farmers to plow their land in the fall. Plowing is an effectual preventive of the spread of fire. *248And it could hardly be matter of serious consequence to a farmer whether he plowed a strip sufficient for this purpose, at one time or another. To determine the degree of negligence in such cases, regard should be had to the facility and effectiveness of the means of prevention which the parties respectively possess. And I think it more clear that an owner, whose buildings are only endangered by reason of the liability of fire to run a half mile across his stubble-fields to reach them, is guilty of negligence if he neglects the simple precaution of plowing a strip sufficiently wide to prevent it, which he might do without any serious burden or inconvenience, than that the railroad company was negligent in not removing the entire dry grass and weeds upon its line, which, as already suggested, could only be done at so great expense as to make it really impracticable.
I think, therefore, upon the undisputed evidence in the case, if it was the duty of the court to submit to the jury the question of the defendant’s negligence, it should have told them that it was their duty, if they found the defendant negligent, to have found that the plaintiff' had also been guilty of such negligence as would prevent a recovery. And in these views I am fully supported by the late cases in Illinois, referred to in the opinion of the chief justice.
I think, also, that the damages were too remote to form the basis of a recovery. In holding this, I do not wish unnecessarily to adopt, the conclusion of the late Pennsylvania and New York cases referred to in the opinion of the court. They hold that where one building is set on fire by negligence, and the fire is communicated from that to another, the burning of the latter is the remote and not the proximate consequence of the negligence, and therefore, there can be no recovery for it. Without examining the question elaboretely, I will simply say that it seems to me, that where a fire is negligently kindled, the destruc*249tion of whatever is in such a situation as to burn by the mere force of the conflagration, without other intervening cause, is the direct and proximate consequence of the negligence. If this were not so, if fire should be negligently set to a long pile of wood or lumber, it might be said that only the sticks or boards first kindled were lost by the proximate consequences of the negligence, and that, as the fire passed from them to the others, the damage for the loss of all the rest would be remote. But where such a fire is kindled, and, by reason of some other intervening cause, it is carried or driven to objects which it would not otherwise have reached, the destruction of such objects would fairly seem to be a remote consequence of the negligence, and within the principle upon which the cases last referred to might be sustained, if their facts were such as to make it applicable. Thus, if a person should negligently set fire to a building in which powder was stored, and the explosion of the powder should throw fragments of the burning building to other buildings that would not otherwise have been reached, and set them on fire; or, if an unusual gale of wind should carry such fragments to a distance, with the same result — the damage for the loss of such other buildings might justly be said to he remote. This principle was clearly applicable here. It is evident that, except for the strong gale of wind, the fire would not have crossed the brook, and would not have reached the plaintiffs barn. While, therefore, it seems questionable whether the facts in those cases warranted the application of the principle, the facts in the present case do warrant it. And the principle itself furnishes an intelligible line of demarcation between those consequences of negligence in kindling fires for which the party is responsible, and those for which he is not.
I think the judgment should be reversed.
By the Court. — Judgment affirmed.