dissent"> Wilson, O. J.

(dissenting.)

I cannot concur in the result reached. The evidence in this case, in my judgment, does not warrant thé inference that the loss, in fact, resulted from the railroad fire. The legal identification of the destructive fire has not been established.

There is some testimony which now shows that when the railroad fire, in its southeasterly course, reached the vicinity of Munger, at about 5:20 p. m. or in the vicinity of the Five Corners, 4 miles to the east, the wind changed to the northeast. The former opinion discloses several other fires located to the northeast and ahead of the railroad fire as it started to the northeast.

In the prior opinion it was said the evidence was sufficient to justify the jury in finding that the fire on the north side of the river at Mile Post 61 came from the railroad fire. Now, the record forbids such a conclusion, as the testimony conclusively shows the existence of several distinct fires across the river from Mile Post 62 and to the north and northwest which is undoubtedly the source of the Thorwall fire. This fire together with numerous other fires made up the conflagration along the northern flank of the railroad fire and embracing the region of Grand lake, Seville road and possibly a portion of the region between Caribou lake and Pike lake. This fire crossed the Cloquet river about 1-?,- hours before the railroad fire crossed the St. Louis river which necessarily put *288 it considerably ahead of the latter. This fire traveled in its easterly course in a wind coming from somewhat north of west. There were about 40 stray and independent fires east of the Cloquet river and in the burned area. Among these were: Sunset lake fire, section 7-51-17; Eeno fire, section 8-51-17; Bohnsock fire, section 27-51-17; stray fire, section 26-51-17; stray fire crossing railroad in section 36-51-17; the Dahl fire along the east line, section 32-51-16; the Clement fire was seen near the middle of section 33-51-16 between 3 and 3:30 on the day of the fire; the Munson fire was in section 34-51-16; heavy smoke was observed in section 2-50-16; the Mauser fire in section 1-50-16 was thought to be under control, but sparks were falling on this section at 4:10; there were fires in sections 13 and 16-51-16; there were fires in sections 1, 2, 3, 5, 7, 11, 15, 16 and 18-51-15; there were fires in sections 2, 6, 27, 31 and 35-51-15; the city of Duluth was under a heavy smoke all forenoon- — before the railroad fire started; there were 8 fires within a radius of 4 miles of plaintiffs’ residence and all but two of these were north of their home.

The Kimball and Clark homes on section 12-50-15 burned about the same time that plaintiffs’ home burned. Yet plaintiffs’ home is 4 miles east and l-¿- miles north. These two homes were in the path of the railroad fire as it is said to travel northeast, but I cannot understand how it can be said that this fire would go to the northeast and then southerly to plaintiffs’ premises so that they would be burning at the same time. This home is 23 miles from the St. Louis river crossed by the fire at 3:30. The railroad fire did not travel over 6 miles per hour. The improbability of the railroad fire, which upon the record may have burned the two homes mentioned, burning plaintiffs’ home is apparent. But stranger still is the fact that at 6 o’clock the Norman Dairy burned. It is loeated from a mile to 1| miles north of east from the Clark and Kimball homes and almost in a straight line toward the McCool home. Fire was seen at the Dairy farm at 5 o’clock coming from the west 100 feet high. Obviously this is not the railroad fire that traveled northeast to the Clark and Kimball homes. The fire, consuming the Norman Dairy, traveled east and crossed the territory which it is *289 claimed the railroad fire, traveling to the northeast, crossed an hour or so later. If the railroad fire reached this burned-over area, blackened by the Norman Dairy fire, there was necessarily a lack of fuel for its progress. The fire coming from the west to the Norman Dairy came near or over the Work Farm comprising the most of sections 1 and 2-50-15. On the western part of this section 2 was a fire all day. On the eastern part thereof was a fire between 4 and 5 o’clock. About 18 men were fighting fire on the northeast quarter of section 1 from noon to 3 o’clock on the day of the fire. Just west of the Work Farm in section 3 there was a fire at about 5 p. m. West of the Work Farm 2 and 3 miles were two fires in section 5-50-15 and section 36-51-15, that were burning between 11:30 and noon. There cannot be any doubt about the existence of such fires. On this dry windy day all fires grew rapidly. Fires in this vicinity were just as susceptible to wind influences as the railroad fire.

I have no sympathy with the assertion that after a fire has traveled 10 to 15 miles it is distinguishable from another that had its origin at a little or large supply of fuel. A fire started by a match is just as big after .a few miles travel in a gale as a fire that started in all the fuel at Mile Post 62. The “initial impetus” was of no importance in the presence of the terrible wind that prevailed on this fateful day. It made all the small fires into big ones. This was inevitable.

Mrs. Kruger living on section 3-50-15 at 4 o’clock p. m. packed her stuff to move out because of fire.. The railroad fire had crossed the river 16 miles away just 30 minutes earlier. It was not this fire that was threatening Mrs. Kruger who lived 8 miles from plaintiffs’ home toward which her fire was traveling. At 6 o’clock a fire started in section 27-51-15 which could not be put out by the men there. It was 7 miles west and one mile north of plaintiffs’ home. The wind was carrying it southeast. If the wind later turned it to the northeast it would carry it to the north of plaintiffs’ home, from which direction the fire came that consumed it. At that hour the railroad fire was 15 miles away. In the northwest part of section 32-51-14 three miles west and one mile north of *290 plaintiffs’ home was a fire which caused columns of smoke to rise at 4 o’clock p. m. In the south part of section 28-51-14, less than two miles northwest from plaintiffs’ home, was a fire between 4 and 5 o’clock. At 5:30 p. m. a fire was quite near the McCool home, but to the northwest therefrom. This fire was on the southwest corner of section 35-51-14, and perhaps 70 rods from plaintiffs’ home. Here buildings were burned. This was 3| miles, northeast of the Norman Dairy which burned at 6 p. m. The railroad fire was at Munger or Five Corners about 5 o’clock, traveling at 6 miles per hour reaching, apparently, Kimball’s and Clark’s about 7 o’clock. It could not haye started this fire so near the McCool home at 5:30.

At 6:15 fire was encountered in section 35-51-14 about 100 rods almost due north of the McCool home. At the same hour fire was on the southwest comer of section 35-51-14 and 1J miles west and 70 rods north of the McCool home. The Duluth fire Department was fighting a fire in the north part of section 35-51-14 most of the afternoon and left it at 4:20 p. m. still burning. There were other fires mentioned in the prior, opinion which we do not now specifically mention. One witness, McWhorton by name, at about 7 o’clock p. m. traveled the Howard Gnesen road from near the Golf Club where he saw fire, southerly along this road, thence southeasterly toi the south line of sections 10 and 11 and then easterly into Boulevard avenue and then northerly up Woodland avenue to east Calvary road, making’ a horseshoe route with the calks to the north and with the McCool residence between the calks or heels and near the east one. This route to the west and south is more than a mile from this residence. There were no fires along this route at that time. Only a small portion of the territory in the horseshoe area was burned over and that was along the north edge only, showing conclusively that the fire burning this home did not reach it from the southwest.,

Plaintiffs’ home was burned by a fire coming from the north. They left their home by the back door to the south. No one has pointed out how the railroad fire could have reached the particular house. The presence of so many other fires, so near by,.which were ready to consume everything in their course, under the anger of *291 a gale, is not only quite sufficient to account for the loss, but renders it highly improbable that the railroad fire is even a contributing cause of the loss. With this conviction I feel it my duty, because of the reasons stated here and in the prior opinion, to register my protest against liability being imposed by this record which I think is conjectural and speculative in the extreme. I regard the proof as insufficient.

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