A motion for a rehearing was denied and the following-opinion was filed January 13, 1914;
BabNEs, J.An earnest and lawyerlike argument is made-by respondent’s counsel on a motion for rehearing. A considerable portion of it is devoted to the negligence of the defendants. There is no doubt that the evidence was sufficient to establish the fact that the plaintiff and the defendants-were negligent in permitting the right of way to become littered up with highly combustible material, although it was not said in the opinion that plaintiff’s negligence in this regard would defeat a recovery.
It' is urged that the court in treating the question of contributory negligence started with a wrong premise, and that it reached a wrong conclusion whether the premise was right or wrong;
*278The court in the former opinion said:
“The jury found that the defendants ought reasonably to have anticipated under all the circumstances that' the fire set might probably reach and burn the plaintiff’s forest products as a natural and probable result. If the defendants were bound to anticipate the burning of plaintiff’s property, then assuredly the plaintiff was bound to anticipate that it would be burned as a natural and probable result of the fire.”
The point is made that although the jury found that' defendants ought reasonably to have anticipated that the fire set might probably burn the plaintiff’s property, it did not and does not follow that plaintiff should reasonably have anticipated such a result'. The question submitted to the jury dealt with a fire already set. The plaintiff knew the condition of the right of way for a long. time. Tie knew it was badly littered with combustible material. ITe had been adding to the amount of it by piling rotten wood and peeling sound wood on it. He knew the condition of his land on either side of the right of way and that it contained a lot of inflammable debris. He, with two of his employees, was on the ground when the fire started, and they were there during the usual working hours most' of the time until the fire reached the wood, some of them continuously. He knew that the weather had been very dry for a long time. He knew the wind had changed on the morning of May 6th so that it was blowing the fire directly toward the wood, and that it was only 300 of 400 feet therefrom on that morning. He knew that the defendants had not sent' any one to pxit out the fire and had no reason for thinking that any one in authority knew of it, or intended to put it out if they did. The knowledge which the defendants had was imputable to them from the fact that the section crew passed by once or twice a day and a train passed by which did not stop at the siding. Plaintiff knew of every fact about the fire that by any possibility the defendants or their agents or servants could have known or ought to have known. He knew some *279things that they did not know. He was a man of intelligence, apparently being an extensive buyer of forest products as well as a farmer. ITow it can be said on the state of this undisputed testimony that the defendants should reasonably anticipate that the fire which was burning might probably reach and burn the plaintiff’s property, while the plaintiff should not reasonably anticipate such a result, passes our comprehension. The rule laid down deals with one element of negligence: reasonable anticipation of natural and probable results from known causes. "What causes were known or should have been known by the defendants that were not in fact actually known by the plaintiff, and why- was it not as obvious to the plaintiff, who was on the ground, that these causes would produce the results which they did, as it was to-the defendants, if not more so? These questions, to our-way of thinking, have not been and cannot be answered. The only attempt to answer them is the contention that it was the legal duty of the defendants to keep their right of way1 clear of rubbish, and, having failed to perform this duty, the appellant had the right to assume that defendants, would- put out the fire. This argument' is no answer to the-questions suggested, because it does not touch the question of what should reasonably be anticipated from known causes. Besides, the fire had been burning for two days and the defendants had done nothing in reference to it. They had no-men on the ground and there was nothing t'o indicate that they intended to send any one there.
Under the decisions of this court, cited in the former opinion, it was the duty of the plaintiff, under the circumstances, disclosed by the evidence and the finding of the jury referred to, to do what prudence required to preserve his property.
The evidence bearing on contributory negligence was all given by the plaintiff and his employees and is not in dispute. A majority of the court think that it raised no jury *280question and that' the verdict in this regard does not speak the truth. A minority of the court think otherwise. The evidence has been discussed at considerable length in the opinion of the court and in one of the dissenting opinions. The various facts which we think establish contributory negligence have been referred to in the former opinion. If all still find it diffieii.lt to say that the jury was warranted in of the circumstances but one were eliminated, we would exculpating the plaintiff from contributory negligence. We will briefly allude t'o it.
On the morning of May 6th the plaintiff knew that the wind had changed so as to blow the fire toward his wood; that the wind was brisk; that the fire was within a stone’s throw of his wood; that there was an abundance of dry, inflammable material for it to feed on; that there was no one else on the ground, nor likely to be on it, to put the fire out, and that it might probably reach and burn his property within a short time if it was not checked. With this knowledge he did very little to check the spread of the fire and made no call for assistance until it got into his wood shortly after noon. During two or three hours of this critical time he kept his two employees doing their usual work in the wood yard and contenting themselves with looking at the fire occasionally. It may be that this is the kind of care the great mass of mankind would use when they saw a fire approaching which they knew might probably destroy their uninsured property if not checked. It' may be that it was the exercise of due prudence for the plaintiff to do as he did. Our reason, experience, and judgment tell us that when property is threatened by fire or flood the generality of mankind do not act in any such way, unless perchance they are fully indemnified against loss by insurance and are indifferent about what becomes of their property. We have no other lamp to guide us in the solution of the question. We have re-examined the evidence, and adhere to the conclusion heretofore reached.