Opinion by
Mr. Justice Mestrezat,
There are certain uncontroverted facts in this case. Dougherty was employed by the defendant company at its car barn to clean the barn and cars, and destroy the waste or rubbish. About 4:30 o’clock on the afternoon of May 25, 1906, he conveyed in a wheelbarrow to a vacant lot near the barn, not owned by the defendant, two armfuls of waste or rubbish, consisting partly of “greasy stuff, waste,” but principally of newspapers swept from the cars, which he fired by applying a match to it. The day was very windy, and Dougherty remained with the fire until a few minutes after 5 o’clock when he left -it, the flames having been extinguished, but the embers still smoking. While Mary Ross, a child of seven years, living in the immediate neighborhood, was playing with a companion near the fire in the vacant lot after school hours that afternoon, her clothing caught fire and she was badly burned. She died from the effects of the burning, and this action was brought by her parents.
Under proper instructions by the court, the jury found that Dougherty was acting within the scope of his employment with the defendant company when he carried the rubbish across the street to the vacant lot and set it afire, and that Mrs. Pennington, with whom Mary Ross was making her home at the time, was not negligent in the care and control of the child. The learned judge also submitted to the jury to determine whether the defendant company through its employee was negligent in burning the rubbish on the vacant lot under the circumstances and in the manner he did, and in leaving the fire in the condition it was in when Dougherty left it. The finding of the jury establishes the defendant’s negligence in this respect.
[89]*89The single cause of complaint on this appeal is that the court erred in not holding as matter of law that under the evidence in the case the verdict should have been for the defendant. There is no error assigned to the charge, nor to the manner in which the cause was submitted by the learned court to the jury. The court affirmed the defendant company's point that it “was only bound to foresee the nature and probable consequences of leaving the ash heap in the condition in which it was left by Dougherty, and if the jury believe that the injuries incurred by Mary Ross were not such natural and probable consequence, their verdict should be for the defendant.”
In his printed brief the counsel says: “We may concede for the sake of the argument that the burning of the sweepings by defendant's workman was the act of the defendant, and that the duty was thereby imposed upon the defendant through its workman to safeguard the fire until it became harmless. This obligation was performed. The cause of the child’s injury was the fact that the child rebuilt the fire into a dangerous condition and thereby fired herself. ” It is claimed by the appellant’s counsel that the act of the defendant company in burning its rubbish on the vacant lot was not the proximate cause of the child’s injuries, but that there was an independent intervening cause which made the company’s act remote, thereby relieving it from liability in this action.
The argument of the learned counsel for the appellant is based upon an assumption of facts which were not found by the jury to exist in the case; at least from the evidence the jury was justified in finding that the fire was communicated directly to the child’s clothing, without the intervention of any act on her part or by the act of the other child who was with her at the time her clothing was ignited. There was ample evidence for the jury to find that Dougherty was negligent in his control of the fire after he had put a match to the rubbish. He remained with the fire a little more than a half hour and, according to his own story, the embers were smoking when he left it. It is true he says there was no blaze, but a man of ordinary intelligence, which we must assume him to be, would know that the smoking embers might easily be fanned into a [90]*90flame by the high wind which he testified was, at the time, sweeping over that vacant lot.
Hager, a witness on the part of the plaintiff, was sitting on his porch directly across the street from the lot where the rubbish was burned. He testified that he saw Dougherty take the rubbish to the lot, burn it and leave the place. He says that when Dougherty left there was no blaze, but the embers were still smoking. He saw the two little girls go to the ground, and testifies that “they both of them sat down with little sticks this way and began to strike in the embers, .... both of them side by side, and they had not been there not over two or three minutes before little Mary jumped up with this blaze about that far (indicating) behind her dress.” He further testified that he was afraid the children would get afire when he saw them at the place “because it was still smoking and the wind was blowing so hard I was afraid they would catch fire.” He denied that Mary lighted a paper or fanned the embers, and testified that, “In fact they [the two little girls] did not stir from where they sat down until she [Mary] got up to run with the fire.” Hager was an eyewitness to the whole affair, and if his testimony was believed by the jury they were justified in finding that the wind fanned the smoking embers into a flame which communicated directly to the child’s clothing, or carried a live spark or cinder from the embers against the child’s clothing which ignited it. The facts established by the testimony, taken in connection with the undisputed facts in the case, were sufficient to warrant the 'jury in convicting the defendant company of negligence in not guarding and protecting the smoldering embers, which was the direct and proximate cause of the ignition of the child’s clothing, resulting in her death.
Some of the witnesses testified that Mary fanned the rubbish into a flame and lighted a piece of paper from which her clothing caught fire. This is the basis for the contention of the appellant’s counsel that “the cause of the child’s injury was the fact that the child rebuilt the fire into a dangerous condition and thereby fired herself.” But the witnesses who testified to the fire having been communicated to Mary’s clothing in this way said that they did not see her skirts get afire, and [91]*91that they did not know how she did get afire. They confirm Dougherty's testimony that the wind was blowing very hard at the time, and say that it “blew your dress all out.” In fact, Edith Clineff, Mary’s little companion on the occasion, testified that the paper with which she fanned the embers “was not on fire.” Johnson, another witness, who testified that Mary “blowed the fire with a piece of paper” said that he did not see her dress on fire until she had run across the street.
It is apparent, we think, that there is no evidence in the case which would compel the conclusion that the child set fire to her clothing by a piece of paper in her own hands, and hence the learned counsel for the appellant has based his argument upon the assumption of a material and controlling fact which is not conceded in the case. But if we admit that there was testimony in the case from which the jury could have found that the child did fan the smoldering embers into a flame which was communicated to her clothing by a piece of paper in her hands, there is also testimony, as we have already pointed out, from which the jury could find that the wind blew live cinders against her clothing or fanned the embers into a flame which communicated directly to the child’s clothing while she was seated near the fire.
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Opinion by
Mr. Justice Mestrezat,
There are certain uncontroverted facts in this case. Dougherty was employed by the defendant company at its car barn to clean the barn and cars, and destroy the waste or rubbish. About 4:30 o’clock on the afternoon of May 25, 1906, he conveyed in a wheelbarrow to a vacant lot near the barn, not owned by the defendant, two armfuls of waste or rubbish, consisting partly of “greasy stuff, waste,” but principally of newspapers swept from the cars, which he fired by applying a match to it. The day was very windy, and Dougherty remained with the fire until a few minutes after 5 o’clock when he left -it, the flames having been extinguished, but the embers still smoking. While Mary Ross, a child of seven years, living in the immediate neighborhood, was playing with a companion near the fire in the vacant lot after school hours that afternoon, her clothing caught fire and she was badly burned. She died from the effects of the burning, and this action was brought by her parents.
Under proper instructions by the court, the jury found that Dougherty was acting within the scope of his employment with the defendant company when he carried the rubbish across the street to the vacant lot and set it afire, and that Mrs. Pennington, with whom Mary Ross was making her home at the time, was not negligent in the care and control of the child. The learned judge also submitted to the jury to determine whether the defendant company through its employee was negligent in burning the rubbish on the vacant lot under the circumstances and in the manner he did, and in leaving the fire in the condition it was in when Dougherty left it. The finding of the jury establishes the defendant’s negligence in this respect.
[89]*89The single cause of complaint on this appeal is that the court erred in not holding as matter of law that under the evidence in the case the verdict should have been for the defendant. There is no error assigned to the charge, nor to the manner in which the cause was submitted by the learned court to the jury. The court affirmed the defendant company's point that it “was only bound to foresee the nature and probable consequences of leaving the ash heap in the condition in which it was left by Dougherty, and if the jury believe that the injuries incurred by Mary Ross were not such natural and probable consequence, their verdict should be for the defendant.”
In his printed brief the counsel says: “We may concede for the sake of the argument that the burning of the sweepings by defendant's workman was the act of the defendant, and that the duty was thereby imposed upon the defendant through its workman to safeguard the fire until it became harmless. This obligation was performed. The cause of the child’s injury was the fact that the child rebuilt the fire into a dangerous condition and thereby fired herself. ” It is claimed by the appellant’s counsel that the act of the defendant company in burning its rubbish on the vacant lot was not the proximate cause of the child’s injuries, but that there was an independent intervening cause which made the company’s act remote, thereby relieving it from liability in this action.
The argument of the learned counsel for the appellant is based upon an assumption of facts which were not found by the jury to exist in the case; at least from the evidence the jury was justified in finding that the fire was communicated directly to the child’s clothing, without the intervention of any act on her part or by the act of the other child who was with her at the time her clothing was ignited. There was ample evidence for the jury to find that Dougherty was negligent in his control of the fire after he had put a match to the rubbish. He remained with the fire a little more than a half hour and, according to his own story, the embers were smoking when he left it. It is true he says there was no blaze, but a man of ordinary intelligence, which we must assume him to be, would know that the smoking embers might easily be fanned into a [90]*90flame by the high wind which he testified was, at the time, sweeping over that vacant lot.
Hager, a witness on the part of the plaintiff, was sitting on his porch directly across the street from the lot where the rubbish was burned. He testified that he saw Dougherty take the rubbish to the lot, burn it and leave the place. He says that when Dougherty left there was no blaze, but the embers were still smoking. He saw the two little girls go to the ground, and testifies that “they both of them sat down with little sticks this way and began to strike in the embers, .... both of them side by side, and they had not been there not over two or three minutes before little Mary jumped up with this blaze about that far (indicating) behind her dress.” He further testified that he was afraid the children would get afire when he saw them at the place “because it was still smoking and the wind was blowing so hard I was afraid they would catch fire.” He denied that Mary lighted a paper or fanned the embers, and testified that, “In fact they [the two little girls] did not stir from where they sat down until she [Mary] got up to run with the fire.” Hager was an eyewitness to the whole affair, and if his testimony was believed by the jury they were justified in finding that the wind fanned the smoking embers into a flame which communicated directly to the child’s clothing, or carried a live spark or cinder from the embers against the child’s clothing which ignited it. The facts established by the testimony, taken in connection with the undisputed facts in the case, were sufficient to warrant the 'jury in convicting the defendant company of negligence in not guarding and protecting the smoldering embers, which was the direct and proximate cause of the ignition of the child’s clothing, resulting in her death.
Some of the witnesses testified that Mary fanned the rubbish into a flame and lighted a piece of paper from which her clothing caught fire. This is the basis for the contention of the appellant’s counsel that “the cause of the child’s injury was the fact that the child rebuilt the fire into a dangerous condition and thereby fired herself.” But the witnesses who testified to the fire having been communicated to Mary’s clothing in this way said that they did not see her skirts get afire, and [91]*91that they did not know how she did get afire. They confirm Dougherty's testimony that the wind was blowing very hard at the time, and say that it “blew your dress all out.” In fact, Edith Clineff, Mary’s little companion on the occasion, testified that the paper with which she fanned the embers “was not on fire.” Johnson, another witness, who testified that Mary “blowed the fire with a piece of paper” said that he did not see her dress on fire until she had run across the street.
It is apparent, we think, that there is no evidence in the case which would compel the conclusion that the child set fire to her clothing by a piece of paper in her own hands, and hence the learned counsel for the appellant has based his argument upon the assumption of a material and controlling fact which is not conceded in the case. But if we admit that there was testimony in the case from which the jury could have found that the child did fan the smoldering embers into a flame which was communicated to her clothing by a piece of paper in her hands, there is also testimony, as we have already pointed out, from which the jury could find that the wind blew live cinders against her clothing or fanned the embers into a flame which communicated directly to the child’s clothing while she was seated near the fire. Which of the two theories was correct and how the child’s dress was set afire were manifestly for the jury. As suggested above, if the jury found, as they could have found under the evidence, that the child’s clothing was fired by flames or sparks from the rubbish directly communicated to her dress, then there was manifestly no independent, intervening cause which occasioned her injuries, ■and the defendant company is responsible in this action, for the consequences of Dougherty’s negligent act in not guarding the fire until it was in a harmless condition. This would warrant the court in refusing to withdraw the case from the jury. We cannot presume that the jury found that the child’s injuries were caused by her own negligent act. Had the defendant’s counsel desired to raise the question of whether the facts, as he claimed them to be, constituted an independent, intervening cause, he should have submitted a point for instructions and had a direct ruling by the court. He cannot now raise [92]*92that question under the assignments of error filed in the case. Whether the facts, as he alleges them to be, were an independent intervening cause of the child's injuries, cannot be decided on this record. There being sufficient evidence to establish facts disclosing negligence of the defendant as the proximate cause of her injuries, and that evidence having been submitted to the jury, we cannot now sustain an assignment which alleges that the court erred in not setting aside a verdict based upon the evidence.
The testimony in the case was conflicting as to the circumstances and conditions under which the rubbish was burned on the vacant lot, and as to how the girl's dress was set on fire and hence whether the firing of the child's clothing was the natural and probable consequence of Dougherty's act which he should have, foreseen was for the jury. “From the very essence of the thing, ” says Chief Justice Agnew in Penna. R. R. Co. v. Hope, 80 Pa. 373, 380, “the natural probability of a consequence, which ought to have been seen, is a matter of fact to be determined upon the evidence. Every cause must depend upon its own circumstances.” So also was it a question for the jury whether Dougherty exercised the care required of him under the circumstances in starting and guarding the fire: McCully v. Clarke & Thaw, 40 Pa. 399. That case was trespass for not guarding and extinguishing a fire whereby the plaintiff's warehouse and its contents were destroyed. Strong, J., delivering the opinion, said (p. 406): “Whether the defendants had been guilty of the negligence charged, was therefore the principal subject of inquiry; in other words, whether they had exercised such care and diligence to prevent injury to the property of the plaintiff, as a prudent and a reasonable man, under the circumstances, would exercise. Now, it is plain that what is such a measure of care is a question peculiarly for a jury.”
The assignments are overruled, and the judgment is affirmed.