LEES, C.

This is a fire case brought against the defendant railway company and the Director General of Railroads. For convenience, we shall refer to the railway company, throughout this opinion, as the defendant. Plaintiff had a verdict. The appeal is from an order denying a motion in the alternative for judgment notwithstanding the verdict or for a new trial. . . .

Plaintiff's case in chief was directed to proving that in August, 1918, one of defendant's engines started a fire in a bog near the west side of plaintiff's land; that it smoldered there until October 12, 1918, when it flared up and burned his property shortly before it was reached by one of the great fires which swept through northeastern Minnesota at the close of that day.

Defendant introduced evidence to show that on and prior to October 12 fires were burning west and northwest of and were swept by the wind towards plaintiff's premises. It did not show how such fires originated, neither did it clearly and certainly trace the destruction of plaintiff's property to them.

By cross-examination of defendant's witnesses and by his rebuttal evidence, plaintiff made a showing which would have justified the jury in finding that the fires proved by defendant were started by its locomotive on or near its right of way in the vicinity of Kettle river.

After plaintiff's evidence in rebuttal had been put in, the jury were excused to enable defendant's counsel to confer, who later announced they had decided to rest without offering additional evidence. Each of the parties then moved for a directed verdict. Both motions were denied. In making his motion, plaintiff's counsel stated that it was his position that there was no evidence tending to show that any other fire than the bog fire, or fires set by defendant in the vicinity of Kettle river, destroyed plaintiff's property. The Kettle river fires were the subject of much of the testimony received. They started west or northwest of plaintiff's land several days prior to October 12.

Numerous special instructions were requested. One of defendant's was that plaintiff had predicated his cause of action upon the bog fire; that, if he failed to establish that cause of action, he could not recover, even though the jury should find that other fires referred to in the evidence were started by defendant's locomotives and contributed to the burning of his property. This request was denied.

In instructing the jury, the court said in part:

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"If the plaintiff was burned out by some fire other than the bog fire, which other fire was not set by one of the defendant's engines, then, of course, the defendant is not liable. . . . If the plaintiff was burned out by fire set by one of defendant's engines in combination with some other fire not set by any of its engines," then it is liable.

"If you find that other fire or fires not set by one of the defendant's engines mingled with one that was set by one of the defendant's engines, there may be difficulty in determining whether you should find that the fire set by the engine was a material or substantial element in causing plaintiff's damage. If it was, the defendant is liable, otherwise it is not. . . .

"If you find that bog fire was set by the defendant's engine and that some greater fire swept over it before it reached the plaintiff's land, then it will be for you to determine whether that bog fire . . . was a material or substantial factor in causing plaintiff's damage. If it was . . . defendant is liable. If it was not, defendant is not liable. If the bog fire was set by one of the defendant's engines, and if one of defendant's engines also set a fire or fires west of Kettle river, and those fires combined and burned over plaintiff's property, then the defendant is liable."

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The following proposition is stated in defendant's brief and relied on for a reversal:

"If plaintiff's property was damaged by a number of fires combining, one . . . being the fire pleaded . . . the others being of no responsible origin, but of such sufficient or such superior force that they would have produced the damage to plaintiff's property regardless of the fire pleaded, then defendant was not liable."

This proposition is based upon Cook v. Minneapolis, St. P. & S.S.M. Ry. Co. 98 Wis. 624, . . . In Farrell v. Minneapolis & R.R. Ry. Co. 121 Minn. 357, . . . this court considered the Cook case, but refrained from expressing approval or disapproval of its doctrine. The supreme court of Michigan has referred to it as good law. . . . The supreme court of Idaho says the opinion is logical and well reasoned, but the discussion is in a large measure theoretical and academic. . . . Judge Thompson in his work on Negligence, Vol. 1, § 739, says that the conclusion reached is so clearly wrong as not to deserve discussion. If the Cook case merely decides that one who negligently sets a fire is not liable if another's property is damaged, unless it is made to appear that the fire was a material element in the destruction of the property, there can be no question about the soundness of the decision. But if it decides that if such fire combines with another of no responsible origin, and after the union of the two fires they destroy the property, and either fire independently of the other would have destroyed it, then, irrespective of whether the first fire was or was not a material factor in the destruction of the property, there is no liability, we are not prepared to adopt the doctrine as the law of this state. If a fire set by the engine of one railroad company unites with a fire set by the engine of another company, there is joint and several liability, even though either fire would have destroyed plaintiff's property. But if the doctrine of the Cook case is applied and one of the fires is of unknown origin, there is no liability. G.S. 1913, § 4426, leaves no room for the application of a rule which would relieve a railroad company from liability under such circumstances. Moreover the reasoning of the court in McClellan v. St. Paul, M. & M. Ry. Co. 58 Minn. 104, 59 N.W. 978, leads to the conclusion that, regardless of the statute, there would be liability in such a case. We, therefore, hold that the trial court did not err in refusing to instruct the jury in accordance with the rule laid down in the Cook case.

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We find no error requiring a reversal, and hence the order appealed from is affirmed.