I concur generally in the propositions of law stated by my brother Valentine in this case, and think that questions of negligence are, as a rule, questions of fact to be submitted to and decided by a jury; and I am inclined to think it would have been proper for the court in this case to have submitted to the jury, as a separate question, that of *54contributory negligence. But the facts of the case impress me so strongly with the conviction that the acts and conduct of the plaintiff could in no fair sense of the term be considéred negligent, and that if the question had been submitted specifically to a jury they would have been bound to find him free from negligence, that it seems to me that it would be sacrificing substance to form to remand the case for a new trial. If a party half a mile from a railroad track cannot rely upon a traveled public road as a protection against fire running through grass and stubble, how great a distance and how wide a barrier must exist before he can be held free from any imputation of negligence ?
I think the judgment should be affirmed.
Horton, C. J., not sitting in the case.