¶1(dissenting)
¶2I dissent. The case was thoroughly tried for upwards of 5 weeks' by able and experienced attorneys under the supervision of a careful and capable judge, and in my opinion no reversible error occurred. *156The only question of substance presented by the appeal is whether there is evidence fairly warranting the jury in finding that fires carelessly set or allowed to escape by defendant helped to consume or destroy plaintiffs’ property, or, in other words, were a material concurrent cause of the loss. Anderson v. Minneapolis, St. P. & S. S. M. Ry. Co. 146 Minn. 430, 179 N. W. 45. In my judgment there is.
¶3In the forenoon of October 12, 1918, a strong wind prevailed from the west or northwest. This developed into almost a hurricane during the afternoon, the wind obtaining a recorded velocity at Duluth of 76 miles an hour for a short space of time, and during most of the late afternoon and evening from 60 to 65 miles. To the fire defendant set in timber products piled at Mile Post 62 on the railroad about 3 miles west of Brookston, plaintiffs traced the origin of the great conflagration that swept the country to the south and east thereof on October 12, 1918, destroying Cloquet to the southeast and the country east of St. Louis river between said mile post and Clo-quet. There can be no fair doubt of there being abundant proof for finding that the fire so set devastated the territory mentioned up to and beyond the line dividing ranges 16 and 15, and as far north as the south tier of sections in township 51. The evidence justified a finding that between Mile Post 60 and 61 a railway fire jumped the St. Louis river and swept easterly over the Cloquet river toward Grand lake and Pike lake.
¶4It must be remembered that an immense quantity of dry timber products were piled at Mile Post 62, some estimate the amount at about 400 carloads. When this mass caught fire, a hurricane-like wind sent firebrands great distances, the heat would augment the velocity of the wind, and as the fire spread and its path widened north and south its progress would be in streaks, and not uniform, depending on the material feeding the fire and the ground over which it swept, so that in some sections the fire front might be miles in advance of other portions. With a wind velocity of over 60 miles an hour smoke and fire would travel at an exceedingly rapid pace, and very much more rapidly in places where embers were plentiful, and found lodgment in very inflammable stuff. These matters must be considered, also that witnesses were recalling oc*157currences and impressions experienced when they were under the greatest mental and physical stress and excitement, when they could take little notice of time, and when accurate observation was out of question because of smoke and dust.
¶5It should also be borne in mind the weather bureau’s observer at Duluth was using standard time, and generally the people had their clocks set an hour ahead.
¶6There is also abundant proof that the fire from Mile Post 62 swept across St. Louis river south of the mouth of Cloquet river about the same time or a little before Brookston was wiped out. There is also evidence that some hours previous thereto, when the wind was almost a gale, employes of defendant were setting fire to piles of ties between Brookston and Brevator and this criminal negligence would justify an inference that therefrom fire jumped across the river. One of the victims who got a train of the Duluth, Missabe & Northern Railway Company to stop and take on his family, a short distance north of Munger, and passing thence north to Burnett and then back again to Proctor, testified that fire was on both sides that railroad all the way almost into Proctor. 'Lacts in regard to this conflagration, which the witnesses and jurors had to deal with, may best be illustrated by brief references to the testimony.
¶7The witness Mittunen, who sought protection in the middle of St. Louis river south of the outlet of the Cloquet, testified: I see some chunks of fire flying right over us across the river up in the air, quite high up. The flames went over us, and I noticed real fire chunks flying over close to the river.
¶8Witness Willeck, who had taken refuge on Bloom’s place, 6 miles directly east of where Mittunen was, in relating what he went through inside an hour after the flames passed over Mittunen testified: We put out one [firebrand] and another catch right by you. Then came the hard fire. It came so fast I don’t know when it get there. It was sparks flying around, and fine sand … I couldn’t tell how high it was, because I can’t see how high it was. It was roaring, I thought all was the end of the world; the roaring scares you more than the fire … It was about ten minutes to four when I saw the sparks coming. The wind was blowing from *158the west. It was just about as much that you can’t hold yourself on the feet.
¶9Bloom said: I couldn’t tell exactly how high the fire was, very high up in the air, probably hundreds of feet. In about another hour the big fire was some 6 or 7 miles farther to the east in range 15.
¶10The witness Kusch testified: I saw a great ball of fire flying from the west side to the east in Stutchies’ forty, that is right north of me.
¶11Hugo Leslie, who was a mile west of the Jackson School and about 6 or 7 miles west and a little south of plaintiffs’ property, testified: I saw the fire and it was blowing and the flames was so strong it just broke off of the balsams. I could see the flame was above us, just like waves or rolls, and every once in a while around you could see a sort of whirlwind. This was about 5:80.
¶12Near there was George Fairley who thus describes what he noticed : It is rather hard to describe, I presume, in proper language any more than to say that the immediate territory around was very densely covered with smoke; and it seemed like the air or some gas formation just all ignited and blew up; and there was red and blue-red streams of fire clear into the air just like an explosion.
¶13Some 3 miles east of the Jackson School was the Norman Dairy which the fire reached about 6 o’clock. John Norman testified: Fire seemed to be direct west of us in the woods … It seemed to me as though the flames were 100 feet in the air, if not more; for 10 or 15 minutes before the fire came sparks were flying around us, they were mostly small. The fire seemed to come all at once. We ran out of the house and took a dish towel and dipped it in some water and jumped down in the well. It was 18 feet deep. The flame soon came through the air. Timbers from the barn were blown 50 to 100 feet and were burned lying on the ground. His brother said when the flame passed over as they were in the well there was a roar like thunder. From the Norman Dairy the fire went straight northeast over the Norton road to Fred Johnson’s, a distance of about 3/4 of a mile. He thinks the fire reached his place from Norman’s in about two or three minutes.
¶14*159The witness Lignell, a short distance east of Johnson on the Norton road, told about a small brush fire north of his land he had been helping a neighbor to put out, about 2J miles west of plaintiffs’ property, where he was until the big fire came. He testified: The fire came from the west, from Norman’s place, straight over. It came with a big roar in the air, everything was aflame, the air and everything as far as I could see. He and his wife jumped into a well. Wheeler, their neighbor, told a similar experience.
¶15Oscar Klang, who was about a mile northeast from Lignell and Wheeler and nearly the same distance northwest from plaintiffs’, said he got home about 6 o’clock; the fire was just west of him and he had to get out; that the fire came rolling over him from the west.
¶16Victor TJllan, living a block or two west of plaintiffs, first saw the fire coming from the west over the hill, and he thinks this was about 6:15 or 6:30. Live embers 12 to 18 inches long were then falling around him. He testified: I was on the front porch, and I saw the fire coming. Some of it was burning low and there seemed to be rolls in the air, rolls of fire.
¶17An expert witness, a supervisor in the United States Forest Service, testified that, under the conditions existing when the wood products at Mile Post 62 burned, fires might be set by embers therefrom at a distance of 2 miles.
¶18The foregoing are only some of the items in the testimony which may be regarded as tracing and identifying the fire set at Mile Post 62 with the destruction of plaintiffs’ property. There are many others. When such a conflagration as this, fanned by a 60-mile gale, started from immense piles of dry timber products and in its course in a few hours consuming, besides the great quantities of dry vegetation, rubbish, slashings and down timber, large numbers of dwellings, barns, cord wood and other timber products in a territory of this character, we may expect a disturbance in the wind currents and an increase in velocity that may work many queer results as to the spread and progress of the fire. So would also the lakes, wet ground and the heavy timber. The approach to Lake Superior, no doubt, had some influence on the wind direction as well as the intense heat from the fire itself. There is no doubt much in the record *160■warranting a different verdict from that found. Other fires were burning in the territory involved, but the jury could find these to have been confined or under control, And as appellant’s counsel aptly remarks, when this big fire came “it swallowed up” the small ones. To my mind the evidence justified the jury in concluding that this same fire from Mile Post 62 passed over Thorwall’s, Gill’s lands and spread further north than the part traced through Bloom’s, Jackson’s School, and Norman’s Dairy, and finally reached the place where the fire department had been busy in the afternoon north of plaintiffs’ premises in fighting bog or brush fires.
¶19From the examination I have been able to make of the record my judgment is that this court is not warranted in holding this verdict without adequate support, approved as it is by a judge known to be cautious in reviewing testimony in cases of this character.
¶20I agree with Justice Holt that the ultimate question was one of fact for the jury and that the evidence sustains the verdict.