specially concurring.
I concur in the result reached by the majority; however, not for all the reasons stated by the majority.
*439The defendant assumed it had a duty to take precautions to determine if a fire had been started in the trailer and, if so, to attempt to suppress the fire. I think this assumption is correct.
Plaintiff charges defendant with negligence in failing to determine if a fire had been started and in failing to suppress the fire. Plaintiff did not charge that the defendant negligently started the fire.
Defendant alleges in its answer that the plaintiff’s insured (Lyons) caused the start of the fire by negligently repairing and maintaining the electrical installations in the trailer. On plaintiff’s motion the trial court struck this defense of contributory negligence upon the ground that it was irrelevant.
Plaintiff’s position is that it charged defendant with negligence in failing to discover and suppress the fire; that any possible negligence on Lyons’ part in starting the fire is irrelevant to defendant’s liability. I disagree with plaintiff’s contention. If defendant can prove Lyons’ negligence started the fire, I am of the opinion that plaintiff is barred from recovery.
Prosser states:
a* * * if ke gets a fire, the failure of a third person to extinguish it, however unreasonable, will not relieve him from liability. * * *” Prosser, Law of Torts 288, § 44 (4th ed 1971).
It seems to me the same result should follow if the plaintiff’s negligence was a cause of the fire. The issue is one of foreseeability, and it should at least be a question of fact whether one who negligently causes a fire to start in his dwelling should foresee that a third person (the defendant in this case) may act negligently in failing to discover the fire or in attempting to suppress the fire.
*440The trial court struck defendant’s fourth affirmative defense which alleged other persons “took reasonable action to ascertain whether a fire had started” and went on to allege that other persons did what plaintiff charged defendant failed to do. This was an attempt by defendant to allege that any negligence on its part was not a cause of the damage as other persons did whatever plaintiff contends defendant was supposed to do and the damage, nevertheless, ensued. This contention can be made under a general denial; therefore, the order striking was not in error.
The last assignment of error is on the same general-subject. Defendant contends the trial court refused to consider evidence that third persons properly performed duties which plaintiff claims were negligently performed by defendant. For this reason, defendant contends, any negligence on its part could not be a cause of the damage.
I cannot determine whether the trial court failed to consider this evidence. On a ,new trial the trial court should consider such evidence, if it is introduced, to decide whether the defendant’s failure to discover and suppress the fire was a cause of the damage.
O’Connell, C. J., joins in this specially concurring opinion.