Mr. Justice Trunkby
delivered the opinion of the court,
However severe animadversions, sometimes made upon juries, the courts are bound to conserve their rights in the trial of causes. The organic law secures to the people trial by jury, as it was at common law, and nothing is more offensive in the administration of justice than for the judge to usurp the disposition of facts. Where there is no evidence of a disputed fact, or a mere scintilla, the question shall not be submitted; but where there is sufficient evidence to warrant its finding, it must be, and its determination is exclusively fór the jury. If a fact, in the opinion of the judge, be proved by clear and uncontradicted oral testimony, he may advise, not command, the jury to find it. They may disbelieve the witnesses, though he credits them, and they may understand the testimony differently from him. When a fact, essential to the maintenance of a cause, is not established by proof, the judge may order a nonsuit, or direct a verdict for defendant; and when the' requisite facts are agreed upon, or admitted, he may instruct a finding for plaintiff. These trite principles, called to mind by the liné of argument, seem to have been remembered by the learned judge, and they forbid reversal in absence of error in his rulings upon legal questions. If, indeed, it be'true that a prejudice exists affecting jurors in a class of cases, elsewhere, it might be profitable to inquire into the causes and of the means for its removal.
The chief complaint in this cause is, “ the question of remoteness or proximity was referred as a question of fact to the jury.” How it could have been otherwise, without disregarding the authority of Pennsylvania Railroad Co. v. Hope, 30 P. F. Smith 373, is difficult to comprehend. There the fire was dropped on a cross-tie of the track, “ and running into a small heap of dry grass that had been cut and pulled and thrown into a pile, in the fall before, was carried thence by means of rubbish and dry grass on the company’s ground, across the roadway to the fence, which was fired, and thence across two grass fields, burning the dry grass in its pathway, until it reached the plaintiff’s fence and woodland, about six hundred feet from the railroad, burning the fence and a large part of the woods. The weather was dry and windy, and the [128] direction of the wind was strongly toward the plaintiff’s fields and woods.” Here, the sparks were thrown from the engine to a point alongside of the defendant’s track, on land adjoining the plaintiff’s, about three hundred feet from the lumber, set fire to combustible materials, consisting of leaves, briers, brush, stumps and logs, burning the same in its pathway till it reached the plaintiff’s lumber. The weather was dry and a high wind was in the direction of the property destroyed. There, the sparks fell on the track and were communicated to the adjoining land by the dry grass, negligently left by the company on its roadway. Here, the sparks were thrown into the combustibles on the adjoining land. The fire, reaching the combustibles on the land, was as sure to destroy in one case as the other. It was held that the question of proximity was one of fact peculiarly for the jury. “ How near or remote each fact is to its next succeeding fact in the concatenation of circumstances from the prime cause to the end of the succession of facts, v'hich is immediately linked to the injury, necessarily must be determined by the jury. These facts or circumstances constitute the case, and depend upon the evidence. The jury must determine, therefore, whether the facts constitute a continuous succession of events, so linked together, that they become a natural whole, or whether the chain of events is so broken, that they become independent, and the final result cannot be said to be the natural and probable consequence of the primary cause — the negligence of the defendant. The rule concerning involuntary negligence, as distinguished from wanton or intentional injury, is expressed in the maxim, causa próxima non remota spectatur.
* * In all or nearly all cases, the rule for determining what is a proximate cause is, that the injury must be the natural and probable consequence of the negligence, and that this might and ought to have been foreseen under the surrounding circumstances. These are the circumstances of the particular case, and from the nature of the thing must be referred to the jury.” Per Agnew, C. J.
The portion of the charge, alleged erroneous in the ninth assignment, immediately preceded the reading of the matter set forth in the fifth assignment, and placed in its proper order in the instructions to the jury) accords with the doctrine in Hope’s case, and is nearly in the words there used. To have affirmed defendant’s eighth point would have annulled that decision. The facts were not agreed upon nor admitted, and their finding was exclusively for the jury. Had the defendant added to those stated in the point, another fact, namely, that the fire was transmitted by a continuous burning of the leaves and brush, from the point of its origin to the lumber, the natural and probable consequence of defendant’s, negligence, the jury might properly have been told that, upon such facts, the cause was proximate and plaintiffs could recover. Or, instead, had it been added that there was no continuous burning and the destruction [129] of the lumber was not a natural result of setting fire to the leaves and brush, then upon such facts, it could well have been affirmed that the maxim applied and the verdict must be for defendant. A jury of the vicinage would understand the witnesses and know quite as well how that fire would run in the dry leaves and brush, on a windy day, as a judge learned in the law. Likely not one would hesitate in believing there was no real break in the fire, from its starting point to the lumber, or that if it got within eighteen or twenty feet of the lumber, the latter would burn. They could also determine whether dry weather and high winds, in the spring-time, are extraordinary; and whether, under these conditions, the continuous succession of events was such that the cause was naturally linked to the injury, and within the probable foresight of him whose negligence ran through from the beginning to the end.
It is contended that Hoag & Alger v. L. S. & M. S. Railroad Co., 4 Norris 293, in effect overrules thé doctrine in Railroad Co. v. Hope, and fully sustains and approves the ruling in Pennsylvania Railroad Co. v. Kerr, 12 P. F. Smith 353. The opinion of the late chief justice, in Hope’s case, shows the marked distinction between that and Kerr’s, and that the latter, upon its own facts, was unshaken. If the case of Hoag & Alger seems to support the one rather than the other, it is because of the greater similarity of facts.
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Mr. Justice Trunkby
delivered the opinion of the court,
However severe animadversions, sometimes made upon juries, the courts are bound to conserve their rights in the trial of causes. The organic law secures to the people trial by jury, as it was at common law, and nothing is more offensive in the administration of justice than for the judge to usurp the disposition of facts. Where there is no evidence of a disputed fact, or a mere scintilla, the question shall not be submitted; but where there is sufficient evidence to warrant its finding, it must be, and its determination is exclusively fór the jury. If a fact, in the opinion of the judge, be proved by clear and uncontradicted oral testimony, he may advise, not command, the jury to find it. They may disbelieve the witnesses, though he credits them, and they may understand the testimony differently from him. When a fact, essential to the maintenance of a cause, is not established by proof, the judge may order a nonsuit, or direct a verdict for defendant; and when the' requisite facts are agreed upon, or admitted, he may instruct a finding for plaintiff. These trite principles, called to mind by the liné of argument, seem to have been remembered by the learned judge, and they forbid reversal in absence of error in his rulings upon legal questions. If, indeed, it be'true that a prejudice exists affecting jurors in a class of cases, elsewhere, it might be profitable to inquire into the causes and of the means for its removal.
The chief complaint in this cause is, “ the question of remoteness or proximity was referred as a question of fact to the jury.” How it could have been otherwise, without disregarding the authority of Pennsylvania Railroad Co. v. Hope, 30 P. F. Smith 373, is difficult to comprehend. There the fire was dropped on a cross-tie of the track, “ and running into a small heap of dry grass that had been cut and pulled and thrown into a pile, in the fall before, was carried thence by means of rubbish and dry grass on the company’s ground, across the roadway to the fence, which was fired, and thence across two grass fields, burning the dry grass in its pathway, until it reached the plaintiff’s fence and woodland, about six hundred feet from the railroad, burning the fence and a large part of the woods. The weather was dry and windy, and the [128] direction of the wind was strongly toward the plaintiff’s fields and woods.” Here, the sparks were thrown from the engine to a point alongside of the defendant’s track, on land adjoining the plaintiff’s, about three hundred feet from the lumber, set fire to combustible materials, consisting of leaves, briers, brush, stumps and logs, burning the same in its pathway till it reached the plaintiff’s lumber. The weather was dry and a high wind was in the direction of the property destroyed. There, the sparks fell on the track and were communicated to the adjoining land by the dry grass, negligently left by the company on its roadway. Here, the sparks were thrown into the combustibles on the adjoining land. The fire, reaching the combustibles on the land, was as sure to destroy in one case as the other. It was held that the question of proximity was one of fact peculiarly for the jury. “ How near or remote each fact is to its next succeeding fact in the concatenation of circumstances from the prime cause to the end of the succession of facts, v'hich is immediately linked to the injury, necessarily must be determined by the jury. These facts or circumstances constitute the case, and depend upon the evidence. The jury must determine, therefore, whether the facts constitute a continuous succession of events, so linked together, that they become a natural whole, or whether the chain of events is so broken, that they become independent, and the final result cannot be said to be the natural and probable consequence of the primary cause — the negligence of the defendant. The rule concerning involuntary negligence, as distinguished from wanton or intentional injury, is expressed in the maxim, causa próxima non remota spectatur.
* * In all or nearly all cases, the rule for determining what is a proximate cause is, that the injury must be the natural and probable consequence of the negligence, and that this might and ought to have been foreseen under the surrounding circumstances. These are the circumstances of the particular case, and from the nature of the thing must be referred to the jury.” Per Agnew, C. J.
The portion of the charge, alleged erroneous in the ninth assignment, immediately preceded the reading of the matter set forth in the fifth assignment, and placed in its proper order in the instructions to the jury) accords with the doctrine in Hope’s case, and is nearly in the words there used. To have affirmed defendant’s eighth point would have annulled that decision. The facts were not agreed upon nor admitted, and their finding was exclusively for the jury. Had the defendant added to those stated in the point, another fact, namely, that the fire was transmitted by a continuous burning of the leaves and brush, from the point of its origin to the lumber, the natural and probable consequence of defendant’s, negligence, the jury might properly have been told that, upon such facts, the cause was proximate and plaintiffs could recover. Or, instead, had it been added that there was no continuous burning and the destruction [129] of the lumber was not a natural result of setting fire to the leaves and brush, then upon such facts, it could well have been affirmed that the maxim applied and the verdict must be for defendant. A jury of the vicinage would understand the witnesses and know quite as well how that fire would run in the dry leaves and brush, on a windy day, as a judge learned in the law. Likely not one would hesitate in believing there was no real break in the fire, from its starting point to the lumber, or that if it got within eighteen or twenty feet of the lumber, the latter would burn. They could also determine whether dry weather and high winds, in the spring-time, are extraordinary; and whether, under these conditions, the continuous succession of events was such that the cause was naturally linked to the injury, and within the probable foresight of him whose negligence ran through from the beginning to the end.
It is contended that Hoag & Alger v. L. S. & M. S. Railroad Co., 4 Norris 293, in effect overrules thé doctrine in Railroad Co. v. Hope, and fully sustains and approves the ruling in Pennsylvania Railroad Co. v. Kerr, 12 P. F. Smith 353. The opinion of the late chief justice, in Hope’s case, shows the marked distinction between that and Kerr’s, and that the latter, upon its own facts, was unshaken. If the case of Hoag & Alger seems to support the one rather than the other, it is because of the greater similarity of facts.
In Hoag & Alger v. The Railroad Co., the plaintiffs adduced the evidence upon which they framed their third point, praying instructions that if the jury believed the facts as therein stated, they were entitled to recover. The defendant conceded the facts, and the jury were told that upon the facts in evidence, or as assumed in the plaintiff’s third point, their verdict should be for defendant. Had the facts not been virtually admitted the instruction would have been bald error; and so held this court. Paxson, J., after referring to, and quoting at some length from Railroad Co. v. Hope, without a word of qualification or abatement of its force, says: “ But it has never been held that when the facts of a case have been ascertained, the court may not apply the law. to the facts. This is done daily upon special verdicts and reserved points. Thus in the Railroad Co. v. Kerr, 12 P. F. Smith 353, a case bearing a striking analogy to this, the court submitted the question of negligence to the jury, but reserved the question of proximate cause upon the undisputed facts of the case. Of course, this could not have been done if the facts were in dispute. A reserved point must be based upon facts admitted in the cause or found by the jury. In questions of negligence it has been repeatedly held that certain facts when established amount to negligence per se. * * * We may therefore regard the plaintiff’s third point as a prayer for instructions upon the undisputed facts of the case.” It thus appears that the authority of The Rail[130] road Co. v. Hope is in nowise shaken by the decision in a case where the plaintiffs- complained that the facts were not submitted which they themselves assumed to be true. Had the opposite party denied they were a full and fair statement and the case had come on his complaint, the situation would have been altogether different. Or had the assumed facts been in dispute, and the' point refused therefor, neither party could complain.
In that case the ignited oil ran down the bank into the river and was carried down the current, top of the water, till consumed. On its way it set fire to the plaintiff’s property. The water bearing it was an intervening agent, as would be the hand bearing a lighted torch. This court stated the rule for determining what is proximate cause, and said: “It would be unreasonable to hold that the engineer of the train could have anticipated the burning of the plaintiff’s property as a consequence likely to flow from his negligence in not looking out and seeing the land-slide.” “It is manifest that the negligence was the remote and not the proximate cause of burning the plaintiff’s building.” Not so, was it held where fire was negligently communicated to dry grass and fences, in which the fire spread as it consumed, and was speeded in its progress by a strong wind. In the latter, the question of proximity was one of fact- for the jury, who must determine whether the injury was the natural and probable consequence of the negligence, such a consequence as under the surrounding circumstances of the case, might and ought to have been foreseen by the wrongdoer as likely to flow from his act. What would be more quickly apprehended, by one setting fire to dry leaves and brush, than that it would run before the wind and consume property in its pathway ?
There is no error in the answer to the defendant’s fourth point: besides in the general charge, on this matter, the -court called attention to the testimony in a manner which ought to be entirely satisfactory.
An examination of the testimony has convinced us that the defendant’s tenth and eleventh points were rightly refused. The plaintiff’s, if believed, standing alone, would justify a verdict in his favor, and, consequently, the court was bound to submit the questions of fact to the jury, no matter how strong the defendant’s counter proofs. It would be idle to refer to the testimony of each witness in detail.
The third, fourth, sixth and tenth assignments were not pressed, for the declared reason, that it is now settled that it is not contributory negligence in’ the owner to leave combustible material on his land near a railway track: Philadelphia & Reading Railroad Co. v. Hendrickson, 30 P. F. Smith 182.
The numerous points were fairly answered, and the instructions so full that there is no complaint of omission to charge on any question which was raised at the trial.
Judgment affirmed.