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VI. Burden of Proof.-Where the evidence shows that a fire originated from an engine running over the defendant's railway, the

sparks. Cleveland v. Grand Trunk R. Co., 42 Vt. 449; Nashville, etc., R. Co. v. Tyne (Tenn.), 7 Am. & Eng. R. R. Cas. 515; Brighthope R. Co. v. Rogers, 76 Va. 443; s. c., 8 Am.-& Eng. R. R. Cas. 710. Or that it emitted more sparks than other engines on the same line. Brusberg v. Milwaukee, etc., R. Co., 55 Wis. 106; s. c., 7 Am. & Eng. R.R. Cas. 505. And where the witness lived nineteen miles from the place of the fire, he was allowed to testify that engines about where he lived emitted sparks in great quantites. Pennsylvania R. Co. v. Stranahan, 79 Pa. St. 405.

Proof is also admissible to show that the same engine at about the time of the injury complained of set out other fires. Phila., etc., R. Co. v. Schultz, 93 Pa. 340; s.c, 2 Am & Eng. R. R. Cas. 271; Slosson v. Burlington, etc., R. Co., 11 Am. & Eng. R. R. Cas. 67; s. c., 60 Iowa, 215; Lanning v. Chicago, etc., R. Co., 68 Iowa, 502; s. c., 25 Am. & Eng. R.R, Cas. 493; Missouri Pac. R. Co. v. Kincaid; 11 Am. & Eng R. R. Cas. 83; s. c., 29 Kan. 645; Haseltine v. Concord R. Co. (N. H.), 6 N Eng. Rep. 897. It is competent for the plaintiff to prove that two weeks after the fire the same engine was seen to emit such sparks at the point where the fire occurred as would have been sufficient to occasion it. Nashville, etc., R. Co. v. Tyne (Tenn.), 7 Am. & Eng. R. R. Cas. 515; and see Pittsburgh, etc., R. Co. 2'. Noel, 77 Ind. 110; s. c., 7 Am. & Eng. R. R. Cas. 524.

But in Missouri proof of such matters is held to be collateral and not admissible. Coale v. Hannibal, etc., R. Co., 60 Mo. 227; Lester v. Kansas, etc., R. Co., 60 Mo. 265.

It is not necessary that the proof should show from which engine the fire escaped. Pittsburgh, etc., R. Co. v. Noel, 77 Ind. 110; s. c., 7 Am. & Eng. R. R. Cas. 524: Diamond v. Northern Pac. R. Co., 6 Mont. 580; s. c., 29 Am. & Eng. R. R. Cas. 117. But where it appears that the fire must have been caused by one or the other of two locomotives, evidence of other fires kindled by different locomotives before and after the fire complained of is not admissible. Gibbons v. Wisconsin V. R. Co., 58 Wis. 335; s. c., 13 Am. & Eng. R. R. Cas. 469.

In some cases it is held that if the fire is discovered by the side of the track shortly after an engine has passed, it may be presumed that it originated in

sparks from the engine. Smith v. London & N. W. R. Co., L. R. 6 C. P. 14; Burke v. Nashville R. Co., 7 Heisk (Tenn.), 451; Reading, etc., R. Co. v. Latshaw, 93 Pa. St. 449. The contrary is held by some authorities, even though the day in question be so dry and windy as to lend great probability to the suppo sition that the fire was kindled by sparks from a passing engine. Karson v. Milwaukee, etc., R. Co., 7 Am. & Eng. R. R. Cas. 501; s. c., 29 Min. 12; Brusberg v. Milwaukee, etc., R. Co., 7 Am. & Eng. R. R. Cas. 505: s. c., 55 Wis. 106.

In Butcher v. Vaca Valley, etc., R. Co. 67 Cal. 518; s. c., 22 Am. & Eng. R. R. Cas. 644, it is held that the fact that the defendant's locomotive passed the field where the fire was first discovered only a few moments before the discovery of it, raised at least some probability, in the absence of proof of any other known cause, that the fire was caused by said locomotive. This probability was strengthened by the facts that a strong wind was blowing from the north, and the fire was first discovered south of where the locomotive had just passed, and that such locomotive was lighter and had shorter flues than some of defendant's engines, and for these reasons would be more liable to emit fire than heavier engines with longer flues. But the foregoing circumstances, under which the fire was kindled, would not, in the absence of any other evidence, justify a finding that the engine was not of approved construction, and properly managed, and an instruction that assumes the contrary is erroneous.

In an action against a railroad com. pany for two fires, one of which was alleged to have been caused by sparks cast from defendant's engine upon plaintiff's premises, on the other upon com bustibles on defendant's right of way, there was testimony that soon after a train had passed, smoke was seen in plaintiff's orchard, and that the fire had started on the line between plaintiff's and the company's land, and was going away from the track. It was also testified that engines on that road sometimes threw forty feet beyond the right of way. It also appeared that after the second fire grass and weeds on the right of way were found partially burned. Held, that there was evidence to justify the jury in finding that each fire was caused in the manner alleged. Norfolk & W. R. Co. v. Bohannan (Va.), 7 S. East. Rep. 236.

same proof in many jurisdictions tends to show negligence on the part of the company in setting out the fire, and it is unnecessary for the plaintiff to show affirmatively by direct evidence any defect in the construction or condition of the engine, or any negligence in its management.1

1. Woodson v. Milwaukee, etc., R. Co., 21 Minn. 61. The court in discussing the question say: "There is certainly good sense in the rule that proof of proper construction and management of the engine should in all cases be required of the company, which possesses full knowledge of the facts, rather than on the plaintiff, who usually can know little or nothing of the engines or employees of the company:" citing Bass v. Chicago, etc., R. Co., 28 Ill. 9; I. Cent. R. Co. v. Mills, 42 I. 407; Spaulding v. Chicago, etc., R. Co., 30 Wis. 110.

In Mahoney v. St. Paul, etc., R. Co., 35 Minn. 361; s. c., 25 Am. & Eng. R. R. Cas. 471, Gilfillan, C. J. says: "The statute makes the fact of the fire being so scattered prima facie evidence of such negligence or defect. The existence of such negligence or defect is still the issue to be presented by the complaint and tried by the jury.'

This is the rule adopted by the courts of England. Aldridge v. G. W. R. Co., 3 M. & G. 515; Piggot v. Eastern, etc., Ry. Co., 3 C. B. 229; Smith v. London, etc., Ry. Co., L. R. 6 C. P. 14; Gibson v. S. E. Ry. Co., 1 Fost & F. 23.

Arkansas.-Tilley v. St. Louis, etc., R. Co.. 32 Am. & Eng. R. R. Cas. 324.

Illinois. Bass v. Chicago, etc., R. Co.. 28 Ill. 9; Ill. Cent. R. Co. v. Mills, 42 Ill. 407; Toledo, etc., R. Co. v. Larmon, 67 Ill. 68. This rule has since been confirmed by statute, chap. 114, § 89. Rev. Stat. of Ill. 1877. Chicago, etc., R. Co, v. McCahill, 56 Ill. 28; Chicago, etc., R. Co. v. Clampit, 63 Ill. 95; Pittsburg, etc., R. Co. v. Campbell, 86 Ill. 443; Chicago, etc., R. Co. v. Pennell, 110 Ill. 435.

Iowa. By statute sec. 1289 Code. Babcock v. Chicago, etc., R. Co., 11 Am. & Eng. R. R. Cas. 64; s. c., 62 Iowa, 593 (overruling Gandy . Chicago, etc., R. Co.. 30 Iowa, 420); McCummons v. Chicago, etc., R. Co., 33 Iowa, 187; Garrett v. Chicago, etc., R. Co., 36 Iowa, 121; Engle v. Chicago, etc., R. Co. (Iowa), 37 N. W. Rep. 6.

Maryland.-Green Ridge R. Co. v. Brinkman, 64 Md. 52; s. c., 23 Am. & Eng. R. R. Cas. 342; Annapolis, etc., R. Co. v. Gantt, 39 Md. 115; Baltimore, etc., R. Co. v. Shipley, 39 Md. 251. But see

Baltimore, etc., R. Co. v. Woodruff, 4 Md. 242.

Michigan.-Jones v. Michigan Cent. R. Co., 25 Am. & Eng. R. R. Cas. 483; s. c., 59 Mich. 437.

Minnesota.-Woodson v. Milwaukee, etc., R. Co., 21 Minn. 60.

It being shown in an action for the recovery of damages upon the ground of negligence, that the fire was com municated from an engine of the defendant to combustible matter on its right of way, and thence to plaintiff's property adjacent thereto, the statute (Gen. St. 1878. c. 34, § 60) raises a presumption of negligence on the part of the defendant, and the burden was upon it of proving the absence of negligence in respect to the condition and management of the engine. Sibelrud v. Minneapolis, etc., R. Co. 29 Minn. 58; s. c., 7 Am. & Eng. R. R. Cas. 499; Karson v. Milwaukee, etc., R. Co., 29 Minn. 12; s. c., 7 Am. & Eng. R. R. Cas. 501.

The fact, unexplained, that a very unusual volume of sparks was thrown from a railroad engine, whereby fire was set to adjacent property, held to be evidence of negligence. Johnson v. Chicago, etc.. R. Co., 31 Minn. 57; s. c., 13 Am. & Eng. R. R. Cas. 460.

A presumption of negligence arising under the statute, and the burden being upon the defendant to show carefulness in the management of the engine, the testimony alone of the engineer that he handled the engine very carefully." but

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not any differently from what I [he] generally did," held, not such proof of carefulness, under the circumstances, as to compel a conclusion by the jury that there was no negligence. Johnson v. Chi cago, etc., R. Co., 31 Minn. 57; s. c., 13 Am. & Eng. R. R. Cas. 460.

Missouri.-Fitch v. Pac. R. Co., 45 Mo. 325, overruling Smith v. Hannibal & St. Jo. R. Co., 37 Mo. 287; Bedford v. Hannibal, etc., R. Co., 46 Mo. 456; Clemens v. Hannibal, etc., R. Co., 53 Mo. 366; Coale. Hannibal, etc.. R. Co., 60 Mo. 227; Coates v. Missouri, etc., R. Co.. 61 Mo. 38; Wise v. Joplin R. Co., 85 Mo. 178: s. c.. 29 Am. & Eng. R. R. Cas. 164. Mississippi.-Mobile & Ohio R. Co. v. Gray, 62 Miss. 383; s. c., 23 Am. & Eng. R. R. Cas. 373.

In a number of the States, however, the courts hold that no inference of negligence arises from the mere fact that an injury to adjacent property was caused by fire from an engine; that in addition some fact or circumstance of negligence must be alleged and proved.1

VII. Where Fire Spreads.-Where the property destroyed is distant from the railway, and the flame reaches it only by passing through intervening fields, the destruction of the property is never

Nebraska.-Burlington, etc., R. Co. v. Westover, 4 Neb. 268. Nevada.-Longabaugh v. Virginia City, etc., R. Co., 9 Nev. 271.

South Carolina.-The injury being proved, the onus is upon the company to disprove negligence, which they may do by showing that they used the most approved mechanical contrivances to prevent the escape of fire, and that on the day in question their engines were managed with due care and skill. Brown v. Atlanta, etc., R. Co., 19 S. Car. 39; s. c., 13 Am. & Eng. R. R. Cas. 479.

Tennessee.-Burke v. Louisville, etc., R. Co., 7 Heisk. (Tenn.) 451; Simpson v. East. Tenn., etc., R. Co., Lea (Tenn.), 456.

Texas.-Missouri Pac. R. Co. v. Bartlett, 32 Am. & Eng. R. R. Cas. 343; Gulf, etc., R. Co. v. Benson, 32 Am. & Eng. R. R. Cas. 330. But see Gulf, etc., R. Co. v. Halt (Tex. App. 1883), 11 Am. & Eng. R. R. Cas. 72.

Wisconsin.-Spaulding v. Chicago, etc., R. Co., 30 Wis. 110.

And see Case v. Northern Cent. R. Co., 59 Barb. (N. Y.) 644; Bedell v. Long Island R. Co., 44 N. Y. 367; Hull v. Sacramento Valley R. Co., 14 Cal. 387: Atchison, etc., R. Co. v. Stanford, 12 Kan. 354; Gagg v. Vetter, 41 Ind. 228.

1. California. -Henry v. Southern Pac. R. Co., 50 Cal. 176; Hull v. Sacramento Valley R. Co., 14 Cal. 387.

Connecticut.-Burroughs v. Housatonic R. Co., 15 Conn. 124.

Delaware.-Jefferies v. Phila., etc., R. Co., 3 Houst. (Del.) 447.

Indiana.-Indianapolis, etc., R. Co. v. Paramore, 31 Ind. 143; Pittsburg, etc., R. Co. v. Noel, 77 Ind. 110; s. c., 7 Am. & Eng. R. R. Cas. 524; Pittsburg, etc., R. Co. v. Hixon, 110 Ind. 225; s. c., 32 Am. & Eng. R. R. Cas.

Kansas. Atchison, etc., R. Co. V. Stanford, 12 Kan. 354; Kansas, etc., R. Co. v. Butts, 7 Kan. 308.

R. Co., 14 N. Y. 218; McCaig v. Erie R. Co., 8 Hun (N. Y.), 599; Rood v. New York & Erie R. Co., 18 Barb. (N. Y.) 80; Collins v. New York Cent. R. Co., 5 Hun (N. Y.), 499.

North Carolina. -Ellis v. Railroad Co., 2 Ired. 138.

Ohio. Ruffner v. Cincinnati, etc., R. Co., 34 Ohio St. 96.

R.

Pennsylvania.-Railroad Co. v. Yeiser, 8 Pa. St. 366; Pennsylvania R. Co. v. Yerger, 73 Pa. St. 121; Reading, etc., Co. v. Latshaw, 93 Pa. St. 449; s. c., 2 Am. & Eng. R. R. Cas. 267. But see Hyett v. Phila., etc., R. Co., 23 Pa. St. 373.

And see Field v. New York Cent. R. Co., 32 N. Y. 339; Collins v. New York, etc., R. Co., 5 Hun (N.Y.), 499; Sheldon v. Hudson River R. Co., 14 N. Y. 218; Macon R. Co. v. McConnell, 27 Ga. 481; Aldridge v. Railroad Co., 3 M. & G. 515; M. & E. R. Co. v. State, 36 N. J. L. 553; McCready v. Railroad Co., 2 Strobh. (S. Car.) L. 356; Jefferies v. Phila., etc., R. Co., 3 Houst. (Dela.) 447.

But, while in an action against a railroad company to recover damages on account of fire caused by a passing engine, evidence of the single fire may not be sufficient to warrant a finding of negligence against the company, yet when it appears that at or about the same time several fires are by the same engine thus caused, and that only at or about that time were any fires caused by such engine, although used continuously for months; and also that an engine in good order and properly managed does not ordinarily cause fires: held, that a jury is justified in finding negligence, and this notwithstanding it is unable to point out specifically wherein the negligence consists. Missouri Pac. R. Co. v. Kincaid, 29 Kan. 654; s. c., 11 Am. & Eng. R. R. Cas. 83.

The tendency of legislation and also of the decisions of the courts is to make the proof that fire was communicated from a locomotive prima facie evidence of neg

Maine.-Lowney v. New Brunswick R.
Co.. 78 Me. 479; s.c., 29 Am. & Eng.
R. R. Cas. 116.
New York. Sheldon v. Hudson River ligence.

theless the direct and natural result of setting out the fire, and if caused by negligence the company is liable; nor will the fact that the fire would not have spread to the property destroyed but for the dry weather and strong wind affect the liability of the company.1

1. Burlington R. Co. v. Westover, 4 Neb. 268; Kellogg v. Chicago, etc., R. Co., 26 Wis. 223. In the opinion of the majority of the court in the latter case Judge Dixon says: (p. 236): "It would be strange indeed if the liability of a party for the negligent destruction of property by fire were to depend upon the fact whether he set fire at once to the property or whether he set fire to some other combustible material at some distance from it, but communicating with it and which it was apparent at the time would inevitably lead to its destruction."

In Salmon v. Delaware, etc., R. Co.. 14 Am. Law Reg. 560, the Supreme Court of New Jersey say, in speaking of precautions of the landowner against the spreading of fire: "It never would be thought that a person owning land in the vicinity of a canal was bound to raise embankments around such property to guard against its overflow from water escaping by negligence from such artificial aqueduct, and yet the contention for existence of such an obligation would be quite as tenable as is the claim that the present plaintiff was bound to put his property in a condition to withstand fire proceeding from the heedlessness of the defendant."

In Indiana the complaint should aver that the company negligently permitted the fire started on its own right of way to extend to the plaintiff's land. It is not sufficient in such cases to aver negligence in causing the first fire. Louisville, etc., R. Co. v. Ehlert, 87 Ind. 339; s. c., II Am. & Eng. R. R. Cas. 61. In Pittsburgh, etc., R. Co. v. Noel, 77 Ind. 110; s. c., 7 Am. & Eng. R. R. Cas. 524, the complaint alleged that "the defendant's locomotive emitted sparks which communicated with said wood and destroyed it through the carelessness of the defendant and his agents and employees without the fault of the plaintiff." This was held sufficient after verdict.

In Butcher v. Vaca V., etc., R. Co., 67 Cal. 518; s. c., 22 Am. & Eng. R. R. Cas. 644, where the fire had crossed one "Wilson's fields" before reaching the property of the plaintiff destroyed, it was held that this would not preclude a recovery. The judgment, however, was reversed because of an erroneous instruction.

In Annapolis, etc., R. Co. v. Grantt, 39 Md. 115, the court say: "In a case where the fire has not been communicated directly to the plaintiff's property by sparks or cinders from the locomotive, as where it has spread from its first begin ning and has thus communicated indirectly to the plaintiff's property, it is a question for the jury to determine from all the facts of the case whether the injury complained of is the natural consequence of defendant's negligence or whether it has been caused by some intervening force or power which stands naturally as the cause of the misfortune."

In Atchison, etc., R. Co. v. Stanford, 12 Kan. 354, two fires were kindled by sparks from the defendant's engine. These fires spread, but finally united and passed three or four miles over the land of others before they reached the property of the plaintiff destroyed. The court held that as a matter of law it could not say that the defendant's negligent act was not the proximate cause of the injury. See also St. Jo., etc., R. Co. v. Chase, 11 Kan. 47.

In Poeppers v. Missouri, etc., R. Co., 67 Mo. 715, the fire spread about eight miles and destroyed the plaintiff's property, and the court sustained a verdict for the plaintiff. The court say: "The evidence showed that there was no intervention of a new agency in the destruction of the plaintiff's property. The fluctuation of the wind at the season of the year when this fire occurred is nothing remarkable or extraordinary, as the testimony in this case shows."

The general rule to be deduced from the cases is that the question whether a fire communicated from another fire started by an act of negligence is a remote or proximate consequence of the negligent act complained of, is one of fact for the jury. Lehigh Valley R. Co. v. McKeen, 90 Pa. St. 122; Henry 7. Southern Pac. R. Co., 50 Cal. 176: Perry 7. Southern Pac. R. Co., 50 Cal. 578; Clemens v. Hannibal, etc., R. Co., 53 Mo. 366; Atchison, etc., R. Co. v. Bales, 16 Kan. 252; Louisville etc., R. Co. v. Kuming, 87 Ind. 351; Smith v. London R. Co., L. R. C. P. 98; Pennsylvania, etc., R. Co. v. Hope, So Pa. St. 373.

By the act of 1881 (Conn. S. L. 1881, ch. 92), railroad companies are made

When the

VIII Fire Communicated from one Building to Another. servants of a railway company negligently set fire to a building on or near the right of way by sparks from an engine of such company, and fire is thereby communicated to a building or property of the plaintiff which from such cause is injured or destroyed, the company ordinarily will be liable for such injury or loss.1 One of the most valuable criterions furnished by the authorities is to ascertain whether any new cause has intervened between the fact accomplished and the alleged cause. If a new force or power has intervened of itself sufficient to stand as the cause of the mischief, the other must be considered as too remote; but the fact that the fire is carried from one building to another by the wind supplies no new force or power.2. If the fire is the consequence of the carelessness of the railway company and the question of remote or proximate cause is raised, the jury should be instructed that, so far as the case turns upon that issue, the company is to be responsible if the loss is a natural consequence of its alleged carelessness which might have been foreseen by any reasonable person, but it is not to be held responsible for injuries which could not have been foreseen or expected as the results of its carelessness.3.

The

liable for damage done to property along
their roads by fire communicated from
their locomotives where there is no con-
tributory negligence on the part of the
owner. A fire caught from the sparks of
the locomotive on the land of D.
track foreman and his men came upon
the ground and were putting out the fire,
which they could easily have done, when
D requested them to let it burn, as he
wished to burn up the bogs. They ac-
cordingly left it burning. The fire, how-
ever, penetrated to some peat beneath the
surface and thus extended to the adjoin-
ing land of S, and did damage there.
Held, that the railroad company was liable
to S for this damage. Simmonds v. New
York, etc., R. Co., 52 Conn. 264; s. c.,
23 Am. & Eng. R. R. Cas. 369.

1. Fent v. Toledo, etc., R. Co., 59 Ill. 349: Hart v. Western R. Co., 13 Metc. (Mass.) 99.

2. Insurance Co. v. Tweed, 7 Wall. (U. S.) 44. Contra. Pennsylvania Co. v. Whitlock, 99 Ind. 16; s.c., 22 Am. & Eng. R. R. Cas. 629.

In Johnson v. Chicago, etc., R. Co., 31 Minn. 57; s. c., 13 Am. & Eng. R. R. Cas. 460, the fire was first set to the property of one Niskern, thence to a neighboring barn, and thence to the property of plaintiff, about 60 feet from the point where the fire was first set. Held, that the injury was not remote, as a matter of law. Held also, that the negligence of Niskern, in leaving combustible matter exposed to the danger of fire from the

railroad, was not an intervening cause interrupting the legal relation of cause and effect, as between the negligence of the defendant and the burning of plaintiff's property, but rather that Niskern's negligence was concurrent with that of the defendant, either one of the wrong-doers being answerable for the consequences.

3. Fent v. Toledo, etc., R. Co., 59 Ill. 349.

In Perley v. Eastern R. Co., 98 Mass. 414, it is said: "The fact, therefore, that the fire passes through the air driven by a high wind and that it is communicated to the plaintiff's property from other intermediate property of other men does not make his loss a remote consequence of the escape of the fire from the engine."

In Chicago, etc., R. Co. z. Pennell, 100 Ill. 435, a railway company negligently set fire to a depot by sparks from a locomotive. Fire was communicated from the depot to a hotel in the vicinity which was destroyed. In an action by the owner against the company it was held to be enough if a consequence was so natural and direct that a reasonable person might and naturally would see that the destruction of the hotel was liable to result from the burning of the depot.

In Perley v. Eastern R. Co., 98 Mass. 414, the rule as to remote and proximate cause is clearly stated as follows: "If when the cinder escapes through the air, the effect which it produces upon the first combustible substance against which it strikes is proximate, the effect must con

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