concurring.
I have carefully reexamined the entire record in this case in the light of the aid afforded by the briefs and argument of counsel upon rehearing. As indicated in my former opinion, the question is a very close one. I think, hoAvever, that there is ample evidence to sustain the plaintiff’s contention that a portion of the Vroman fire extended westward from the Ditto-Fosberg line, and that this branch fire, extending across the north line of the Larson pasture and northAvard into section 8, is the identical fire which is testified to by the defendant’s witness, McIntyre. At 2 o’clock in the morning McIntyre ceased fighting the side line of a fire, the head of which had passed northward in the direction the wind was bloAving. John Elander, whose place Avas a mile east of the place of injury, testifies that at half past 2 o’clock in the morning he stood on a hill and could see a little bit of flame or red about three or four miles away. It was “a little north, but mostly straight west of me.” This Avould place the fire about íavo or three miles west and north of the place of injury, and about four miles north and a little Avest of Avhere McIntyre Avas, and in the direction in which he said the fire had gone. No wit*522nesses testified, however, to seeing this fire between these two points. Several witnesses at a distance, who saw reflections in the sky, gave their opinions as to where the fire was, but could not definitely settle its locality. My associates are of the opinion that for the lack of direct evidence upon this point a case has not been made for submission to the jury. I think the testimony justifies the conclusion that the McIntyre fire extended northward; but the doubt is whether there is sufficient evidence that it went as far north as the point where Elander saw the flame, to justify the submission of the question to the jury. As to this point there is grave doubt. Much of the testimony in the case has but little relevancy to the inquiry as to whether the .fire passed northward between Pettit’s and Ditto’s, and on a new trial further facts may be developed upon this question. As is pointed out by the chief justice, the parties seem to have spent much more energy in asserting and denying that the northwest fire caused the injury than upon the principal inquiry whether the Yroman fire ever reached the point where the plaintiff was injured.
I do not concur in several of the deductions drawn in the opinion, but, under all the circumstances, concur in the conclusion reached.