The defendant appeals from a verdict and judgment for $1,500 on the charge of permitting to escape from his land a prairie fire which caused the death of plaintiffs husband. On March 21, 1915, the ground being covered with snow and defendant absent from his home on the southeast quarter 24-141 — 74, the hired man of defendant did of his own motion set fire to a straw bottom about half a mile from the house. On April 5, as the snow had melted and the straw bottom was still smouldering, the defendant plowed around it six furrows with a gang plow. Then another snow fell and lay for about six days till the fire had apparently burned out. However, at noon of April 9, a high wind from the northwest started up the smouldering fire. This the defendant observed and with his hired man hastened toward the fire which was instantly blown from the straw bottom to-the stubble and the prairie, and the result was an immediate and uncontrollable prairie fire.
Soon a number of persons arrived on the scene and all of them took part in fighting the fire. But as the wind continued to blow with great and increasing violence, the fire flew over the prairie. With several others Hogan, the deceased, took the risk of attempting to back-fire and he was caught in the on-rushing flame and fatally burned so he died on the same day.
When the fire was started, it was not subject to the control of any person, and it behooved all persons to keep out of its way. “No man is responsible for that which no man can control.” Maxims. (Comp. Laws 1913, § 7260). Even if defendant was negligent in permitting the'fire to escape from his land, he was liable only for the proximate loss and not for a death resulting from a person rushing into, or in front of, an onrushing flame. Such a loss is too remote. “For the breach of an obligation not arising upon contract, the measure of damage is the amount which will compensate for all the detriment proximately caused thereby.” Comp. Laws § 7165.
Proximate cause is that which in a natural and continuous sequence produces the event. 32 Cyc. 745.
In order to find that an act not a wilful wrong is the proximate cause of an injury, it must appear that the injury was the natural and probable consequence of the negligence or wrongful act and that it *208ought to have been foreseen and guarded against. Milwaukee & St. P. R. Co. v. Kellogg, 94 U. S. 469, 475, 24 L. ed. 256, 259.
True, the statute makes it a misdemeanor to set fire to any woods, marsh, prairie or stubble lands except in the months of July and August without first plowing around the same a strip of land 50 feet wide. Sections 2791, 2792. But here there was no setting fire to woods, marsh, prairie, or stubble. Hence, the prairie fire statute has no application. The fire was set to the bottom of an old straw stack when the ground was covered with snow and when there was not the least apparent danger. Such a fire is a matter of common and yearly occurrence on nearly every farm. And defendant was in no manner guilty of even ordinary negligence in permitting the escape of the fire after the lapse of twelve days and after the second snow; he had no reason to suspect the possibility of such a fire and its escape across the six furrows which he had plowed.
By § 5948, every one is responsible not only for the result of his wilful acts but also for an injury occasioned to another by his want of ordinary care or skill in the management of his property or person, except so far as the latter has wilfully or by want of ordinary care brought the injury upon himself. It is on this statute that plaintiff must base her claim to recover for the accident and there is no evidence to charge the plaintiff with any lack of ordinary care, and, as the evidence does show beyond question, the deceased brought the injury upon himself by want of ordinary cai'e. Without reason or necessity he purposely ran into the path of an on-rushing prairie fire, and thereby risked and lost his life. There was no evidence to sustain the verdict for the plaintiff, and on the evidence it is clear that the plaintiff has no cause of action.
Judgment reversed and action dismissed.
Grace, J. I concur in the result. ChristxansoN, J. I dissent.