I most fully concur in the decision of the court, and in the able opinion expressing such decision, upon the real and only question in the case, viz.: Ought the facts shown by the evidence tending to prove contributory negligence on the part of the plaintiff, to have been submitted to the jury?
. On this question the reassertion of the doctrine of the case of Curry v. The Chicago Northwestern Railway Co., 43 Wis., 665, as expressed in the opinion of the chief justice, might have been sufficient, without elaboration.
The learned chief justice says, in relation to the kindred question of the absolute liability of this company by reason of their neglect to fence their track: “.The essential danger of railroads required diligence on both sides; a higher degree of diligence in the management of the road, and at least ordinary diligence on the part of adjoining owners. The rule of absolute liability appears to be as unwise in policy as unsound in legal construction.”
*244The numerous intimations of what would he contributory negligence on the part of owners of lands adjoining a railroad in other cases widely different from this, and the extended review of the great multiplicity of cases and opinions of other courts, in many respects not analogous to this case, and the general discussion of the doctrine of contributory negligence, in the opinion, though able and elaborate, may possibly work prejudice to future cases which should stand upon their own merits and be decided when they arise by impartial judgment, if these extraneous opinions are to be regardde as the decision of the court. In some of the opinions intimated, applicable only to other cases, I regret to say, I cannot concur.
I think the opinion, perhaps somewhat influenced and confused by the preceding review of other cases, goes quite too far in stating the questions presented by this case, when it says; “ The only question to be determined is, whether negligence can be imputed to the owner of lands and buildings adjoining a railroad track, on account of anything done by him either in the location or manner of constructi/ng such buildings, in the manner of maintaining them, the purpose for which he uses them, or the manner of such use. The learned circuit judge before whom this action was tried, instructed the jury that in relation to these matters no negligence could be imputed to such owner.”
There was nothing in the instructions asked or given, relating to the question of the negligence of the plaintiff “in the location of or" manner of constructing such buildings.” Neither the evidence nor the instructions had any reference to any negligence of the plaintiff on account of the location or construction of the buildings, but both were strictly confined to the careless and negligent use of the buildings.
Speaking of certain buildings constructed “ within a few feet of a railroad track, in a city where trains are made up, and engines necessarily pass and repass more frequently than on the ordinary line,” the opinion goes on to say: “In such case, the manner of constructing such buildings in such ¡place, *245including the materials of which they are constructed, and the manner of their nse after construction, are matters upon which, negligence may be predicated; and if such buildings arc not constructed of such materials and in such marnier as .a man of ordinary prudence would construct the same under the circumstances, or if they are not used with the care with which a man of ordinary prudence would use them under like circumstances, and the want of such care, either in the construction or use of such buildings or managemént of such business, contributed directly to the communication of the fire which destroyed the same, then the- owner cannot recover.” Here, again, negligence in the location and construction of buildings, which is outside of the case, is mingled with negligence in the use of such buildings, which is the only negligence 'within the case; and in many other parts of the opinion great stress is laid upon careless and negligent location and construction of the buildings, and the materials and combustible character of the materials of their construction, not within this case. "Whether, and to what extent, the owner of lands adjoining a railroad in a city, or anywhere, can be chargeable with negligence in the location and construction of his buildings in the vicinity of the road, and which are destroyed by fire communicated by a passing locomotive through the gross carelessness of the railway company or its .employees, are questions of very great importance; and no cases are cited in the opinion in which it has been held that such negligence in the mere location and construction of such buildings was contributory to the injury, and prevented a recovery. How near the railroad track may an adjoining owner locate his buildings, and in what manner and with what materials may he construct them, so as not to be liable to the charge of contributory negligence in case they are burned by a passing railroad engine? If this class of negligence is open to speculation, it may become a very serious question to be determined in any given case, and it might possibly be decided, in a case where such a question would be directly involved, either that contributory negligence could not be predicated upon the location or man*246ner of construction of such buildings, or that such negligence should be shown to be gross and not common negligence.
It will be timely to decide such important questions when the case arises in which they are involved.
I most fully concur in the following passage of the opinion, not only as a proper criticism of the opinion in the case of Kellogg v. Railway Co., but as the settled rule in all cases; “ It is a well settled rule, in applying the decisions of the courts of last resort, that the decision must be limited to the facts of the particular case in which the decision is made, and if a general rule or principle is to be founded upon such decision, such general rule will be controlled and limited by such facts.”
■By the Gourt. — The judgment of the circuit court is reversed, and the cause remanded for a new trial.
Rtah, 0. J., took no part.