This case was before us at tbe last June term of this court. Then it appeared that the District Court bad instructed tbe jury, that plaintiff could not recover, without proving that defendant was guilty of gross negligence in setting out said fire, or permitting it to escape. This instruction was held to be erroneous, and tbe cause remanded for a new trial. It now appears from tbe foregoing instruction, that plaintiff claimed that defendant was liable, if be set out tbe fire, without reference to tbe question of negligence, or however much care, or caution, be might have taken in setting it out, or in preventing its escape.
If this was an open question in this state, we should have some hesitation in saying, that tbe refusal to give this instruction was correct. In De France v. Spencer, 2 Gr. Grreene, 462, however, this very question was before tbe court, and tbe giving of a similar instruction held to be erroneous. In that case, tbe court below instructed tbe jury, that, “ be who voluntarily sets out fire on bis own land, is responsible for tbe damages done by its spreading upon tbe lands of others, even though be uses due diligence to restrain it.” In considering this instruction, Kinney, J., in delivering tbe opinion, says: “ But where, from good motives, and under prudential circumstances, a person sets fire to bis prairie, or woods, and uses such care and diligence to prevent it from spreading, as a man of ordinary caution would use to prevent it from injuring bis own property, be is not liable for tbe damage wbicb it may do to tbe premises or property of others. Ordinary prudence and honest motives in setting out tbe fire, and due diligence in preventing it from spreading, *83axe all that is necessary, and will constitute a good defence to an action for damages.” This case is a decision of the question -before us. There are several authorities sustaining the same view. In addition to those cited in this case, see Pardon v. Holland, 17 Johns. 92; Platt v. Johnson & Root, 15 Johns. 213; Thurston v. Hancock, 12 Mass. 220; Harding v. Fahey, 1 G. Greene, 377; Livingston v. Adams et al., 8 Cowen, 175. Others, again, hold the contrary doctrine, and sustain, either partially or entirely, the instructions asked by the plaintiff. Johnson v. Barber, 5 Gilm. 425; Burton v. McClellan, 2 Scam. 434; Stout v. McAdams, 2 Ib. 67.
It will thus be seen, that the courts of other states differ on the question involved, and under such circumstances, we follow the ruling heretofore made in our own courts. As a question of expediency or policy, it may well be doubted, whether the contrary rule would not give greater security to property, and more effectually guard the rights of premises injured, from fire, set out by others, and other acts lawful in themselves, but which reasonably may, and in too many instances do, result in such calamitous consequences. But, we suppose that in the case of Be France v. Spencer, supra, the court had regard to the topography of our state —the fact that the setting out of fire was necessary, very frequently, in order to properly open farms and carry them . on, and that such right had been recognized by legislation,, from the earliest days of our territorial existence. All these, and other considerations, were eminently proper to* be weighed, and no doubt had their appropriate influence. In view of these circumstances, therefore, we adhere to the ruling there made, and hold that the instruction asked was properly refused.
In view of the frequent instances of heavy losses from fire, so set out, we will add one other thought before closing this opinion. Each case must stand to a great extent upon its own circumstances. The liability depends upon a question of care and diligence, or negligence and want of care. Whether there was such care or caution as should excuse, or such negligence as fixes the liability, is a question of fact *84for the jury — the measure of negligence, or diligence, first being defined by the court. In all oases, jurors cannot be too careful in requiring defendants to use strict caution, and great diligence, in setting out their fires, and preventing their escape. All of the circumstances should be carefully weighed, and, unless they disclose, with reasonable certainty, that in setting out the fire, and preventing its escape, the defendant has not used those precautionary measures, or made use of those measures which, as a prudent and cautious man, he would with reference to his own property, they should hold him liable.
Judgment affirmed.