train from the station north at 9:05 A. M., and the time of its arrival at the station south as 9:55. The evidence, however, showed that that train was frequently late; so that the probability is that the fire did not occur later than some time between 10 and 11 A. M. The witnesses substantially agree that the afternoon fire occurred some time between 2 and 3 P. M., so that there must have existed an interval of at least three or four hours between the time the first fire was extinguished and the occurrence of the second fire. The testimony is that the wind came up strong from the south-west at about 2 o'clock, and that the fire spread with great rapidity. Can it be said that the defendant, if it set the first fire, could have anticipated such a result? Could it be presumed to have foreseen more than the witness on the ground, whose own property was endangered, and who swears that he put it out and went home? He must not only have presumed that the fire would spread no further, but he must have felt sure and certain that it was extinguished. An igniting or firing of the prairie grass at that season of the year was like bearing a lighted candle into an open powder magazine; and if the witness, with such danger confronting him, would have felt sufficiently certain that no further damage could result from the forenoon fire, can it be said that the defendant ought originally to have foreseen the actual and final result?

Again, was not the wind, which sprang up with renewed force in the afternoon, the intervening agency, the proximate cause, which produced the injury complained of? If some human agency had rekindled the smouldering fire, and scattered it along the dry, unburned grass, producing the same result, no one would have said the first wrong-doer was responsible for the loss occasioned by the subsequent fire; and ought the defendant to be the more responsible because the power was superhuman?

In each case the question is, what was the direct cause of the result? There must be an end somewhere; there must be same place at which the courts will call a halt, and say that it will refuse longer to trace effect to primary cause, where the

object is to fix liability and award compensation for damages sustained and wrong suffered. If this were not so, in the infinite changes that occur, and the intimate relations that exist, between all agencies, natural and artificial, almost any man might be liable to be indirectly connected with a wrong committed. No better rule of compensation can be devised than that allowed by the rule making the wrong-doer liable for such damage as might be reasonably anticipated by him under the circumstances in which he was placed when he committed the act complained of. This rule has been approved by this court in Hannaher v. Railway Co., ante, p. 1, 37 N. W. Rep. 717, (determined at the February term of this court, 1888,) and the cases there cited, where the rule is laid down that, in the construction of roads, bridges, and similar work, the workmen are only required to construct them in the usual and ordinary manner, and are not required to provide against tornadoes, cyclones, and unusual superhuman force.

But while we are inclined to hold that upon the testimony as it is presented in this case, that the fire claimed to have been set by the defendant in the forenoon was not the proximate cause of plaintiff's loss, we are not required to pass finally upon this question; for there was, in our judgment, clearly a mistrial of this case, in that, if the facts would have warranted a submission of this case to the jury, it should have been submitted so that this question could have been passed upon by them. What is the proximate and remote cause is generally a question of fact, and must be submitted to the jury under proper instructions from the court; and while in this case we are inclined to think the court was warranted in refusing the instructions asked for by the defendant, and while it is also generally true that the mere failure of the court to instruct upon a given proposition, upon which he is not asked to instruct, is not error, yet if, in his failure to so instruct, the appellate court can see from the instructions given that the jury were misled, it is its duty to grant a new trial. An inspection of the charge in this case reveals the fact that the court touched upon this ques

tion but once, and he then told them: "The negligence charged here is the negligence charged in the manner in which they kept their right of way. Counsel for plaintiff desires me to say that, it being demonstrated that this fire was at a point below the plowed strip, as indicated upon the diagram, that being agreed to have been in the afternoon, unless you find as a matter of fact that the fire as seen by Lindgren has a connection with this fire the plaintiff expects a verdict for the defendant; so that takes away a great deal of my charge." This was not only misleading, but if it was meant thereby to tell the jury that they could find for the plaintiff, if they find that the second fire had any connection with the first fire, it was error; for, as we have seen, the jury must not only have found a connection between the two fires,-they must also have found that the first fire, or the wrongful act causing it, was the proximate cause of the second fire, and of the damage arising therefrom. This is the only place in the entire charge in which the court referred to any connection between the first and second fire, and he made this statement so prominent as to tell the jury that it "took away a good deal of his charge" already given. If the cause was submitted to the jury at all, it should have been submitted under such instructions as would have given them clearly to understand that it was for them to determine whether the fire in the forenoon, claimed to have been seen by Lindgren, was the direct and proximate cause of the fire by which the plaintiff sustained the damage complained of.

There was clearly a mistrial in this case, and, as other evidence may be produced upon a new trial which may connect the fire in the forenoon with that in the afternoon, and make it the primary cause, the judgment of the lower court is reversed, and the cause remanded for a new trial, subject to the opinion of this court therein. All the justices concur.

HARTWELL, Respondent, v. NORTHERN P. E. Co., Appellant.

1. Carriers-Limitation of Liability by Notice-Trial-Instruc

tions.

In an action against an express company for the loss of a trunk, the defense being an omission to make a written claim within the time re quired by the shipping contract, or receipt, which was not signed by the consignor, the court charged the jury no written claim was necessary, and that, if they found that the plaintiff made a claim to the company's agent at the point where the trunk was shipped within the required time, and that the company had knowledge of the loss, they would be authorized in finding a verdict for the plaintiff. Section 1263, C. C., provides: "A consignor *by accepting * a written contract for carriage, with knowledge of its terms, assents to the rate of hire, the time, place and manner of delivery therein stated. But his assent to any other modifications of the carrier's * obligations contained in such instrument can only be manifested by his signature to the same." Held, under this section the defendant had no reason to complain of this charge.

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2. Same-Limitation of Liability by Special Contract — Signa

ture.

Bills of lading and contracts are not "special contracts" within the meaning of section 1261, C. C., providing that "the obligations of a common carrier * may be limited by special contract," unless

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they are signed by the consignor or consignee.

(Argued February 21, 1888; affirmed February 24; opinion filed February 4, 1889.)

Appeal from the district court of Richland county; Hon. W. B. McCONNELL, Judge.

J. C. Bullitt, Jr., for appellant.

The clause in the receipt was not complied with. Was the -clause valid and binding?

Whatever doubts may formerly have existed, this question cannot now be considered an open one, and must be answered affirmatively. Such a regulation is not unreasonable, and must be complied with as a condition precedent to the right to re.cover. Express Company v. Caldwell, 21 Wall. 264; Goggin v.

Kansas Pacific R. Co., 12 Kan. 416; Cole v. Western Union Telegraph Co., 33 Minn. 227, 22 N. W. Rep. 385.

There is not a scintilla of evidence to show that any claim for loss was made at the Wahpeton office or elsewhere at any time and the condition was not complied with in any form.

The claim should have been presented within the prescribed time, even though the loss occurred through defendant's negligence. It is a familiar rule that a common carrier is responsible for all damages occasioned by its negligence, notwithstanding any contract which it may make for exemption. The Civil Code, § 1262, is merely declaratory of the common law. But this rule does not affect a stipulation that claims for loss must be presented within a prescribed time, because such a stipulation is not a contract for exemption from liability for negligence, and is perfectly consistent with holding the carrier to the fullest measure of good faith and diligence. It excuses no negligence. It merely prescribes a duty to be performed by the shipper before he will be entitled to maintain his action, and must be complied with in all cases, whether the carrier is negligent or not. Express Co. v. Caldwell, 21 Wall. 264, 268; Cole v.. Western Union Telegraph Co., 33 Minn. 227, 228, 22 N. W. Rep. 385.

The court therefore erred in submitting the case to the jury when there was no evidence to show that claim for loss had been presented within 90 days from the date of shipment, and in instructing the jury that a written claim was not necessary; and the verdict is wholly unsupported by the evidence, inasmuch as there is no evidence that any claim was made.

W. S. Lauder, for respondent.

Respondent was not bound by the terms and conditions of the receipt, for the reason that her "assent thereto was not manifested by her signature to the same." Civil Code, § 1263.

TRIPP, C. J. This is an action brought by the plaintiff for recovery of the value of a certain trunk and its contents, lost by