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that purpose, provided they are such as under the circumstances. it is reasonable to require such company to adopt. If, however, the dangers to be avoided are insignificant or not very likely to occur, and the remedy suggested very costly and troublesome, or such as interferes materially with the efficient working of the engine, it is for the jury to say whether the company could reasonably be expected to adopt it.1

1. Fremantler v. London, etc., Ry. Co., 2 Fost & Fin. 340; 10 C. B. (N. S..) 89. London V. Railway Co., ΙΟ C. B. (N. S.) 89; Hoyt v. Jeffers, 30 Mich. 181; Brighthope R. Co. v. Rogers, 76 Va. 443; s. c., 8 Am. & Eng. R. R. Cas. 710; Baltimore, etc., R. Co. v. Woodruff, 4 Md. 242; Fitch v. Pacific R. Co., 45 Mo. 322; Kansas, etc. R. Co. v. Butts, 7 Kan. 308; Frankford, etc., Turnpike Co. v. Phila, etc., R. Co., 54 Pa. St. 345; Phila., etc., R. Co., V. Hendrickson, So Pa. St. 182; Erie R. Co. v. Decker, 78 Pa. St. 293; Burke v. Louisville, etc.; R. Co., 7 Heisk. (Tenn.) 452; Steinweg v. Erie R. Co., 43 N. Y. 123: Bedell v. Long Island R. Co., 44 N. Y. 367; Webb v. Rome, etc., R. Co., 49 N. Y. 420; Crist v. Erie R. Co., 58 N. Y. 638; Jefferis Railroad Co., 3 Houst. (Del.) 447; Smith v. Old Colony R. Co., 10 R. I. 22; Illinois Cent. R. Co. v. McClelland, 42 Ill. 355; Bass v. Chicago, etc., R. Co., 28 Ill., 9; Toledo etc., R. Co., v. Larmon, 67 Ill. 68; Spaulding_v. Chicago, etc., R. Co., 30 Wis. 110; Toledo, etc., R. Co. v. Waud, 48 Ind. 476; Gagg v. Vetter, 41 Ind. 228; Pittsburgh, etc., R. Co. v. Nelson, 51 Ind. 150; Kenney v. Hannibal R. Co., 63 Mo. 98; Jackson v. Chicago, etc., R. Co., 31 Iowa, 176; Longabough v. Virginia City, etc., R. Co., 9 Nev. 271.

It is indeed sometimes said that these contrivances must be the most perfect possible, but the authorities to this effect are scanty and not thoroughly reliable. Indiana R. Co. v. Paramore, 31 Ind. 143; St. Louis, etc., R. Co. v. Gilham, 39 Ill. 455; Ill. Cent. R. Co. v. McClelland, 42 Ill. 355; Chicago, etc., R. Co. v. Quaintance, 58 Ill. 389; Ill. Cent. R. Co. 7. Shanefelt, 8 Ill. 497.

In Burlington, etc., R. Co. v. Westover, 4 Neb. 268, it is said: "As to what are reasonable precautions against the escape of fire, the court almost without exception hold that where engines are properly constructed and have all the appliances in general use for preventing the escape of fire, and there is no negligence in their management, the company will not be liable, as experience has shown that it is impossible at all times and under all cir

cumstances to prevent the escape of fire from locomotives in such quantities as to occasion injury; but it has also been fully demonstrated that where engines are properly constructed and have the proper appliances for preventing the escape of fire, and are managed with care, they rarely occasion damage by setting out fire.

In Texas, etc., R. Co. v. Levi, 59 Tex. 674; s. c., 13 Am. & Eng. R. R. Cas. 464, the court say: "The evidence tends to show that, by the use of the most approved spark-arresters, it is impracticable to prevent entirely the escape of sparks from locomotives, unless the draught is so closed by the spark-arrester as to prevent the generation of steam. If such be the case, a railway company is authorized to operate its engines with such protection against injury to others by fire as can be given by the use of a high degree of care in the selection and use of such appliances as are approved by prudent and skilful persons, generally engaged in such business, and are found to be best adapted to prevent the escape of fire by which others may be in jured, even though as thus operated there may be danger of injury to others from fire escaping from locomotives. The business being authorized by law, no liability can be incurred from its exercise, unless there be a want of care in its prosecution, even though it be attended with some risk of injury to others." See also Brown 2. Atlanta, etc., R. Co., 19 S. Car. 39; s. c., 13 Am. & Eng. R. R. Cas. 479.

If a railroad company use upon its engine a spark-arrester of an approved pattern in general use, and which, upon a careful inspection by a skilled mechanic, appeared to be in good condition, such company will not be responsible for damage done by a fire occasioned by sparks escaping through such spark-arrester. Hoff v. West Jersey R. Co., 45 N. J. L. 201; s. c., 13 Am. & Eng. R. R. Cas. 476. In a number of cases, however, evidence has been admitted to show that by the proper contrivances fire may be effectually prevented from escaping. Anderson v. Cape Fear Steamboat Co..

IV. Negligence in Management of Engines.-The law requires that the locomotives of a railway company shall not only have the best and most approved appliances to prevent fire from escaping, but in case any engine shall set out fire and destroy the property of a third person, it will devolve on the company to prove that the engine was properly constructed and operated with due care.1 64 N. Car. 399; Steinweg v. Erie R. Co., 43 N. Y. 123; Case v. North Cent. R. Co., 54 Barb. (N. Y.) 644; Dimmock v. North Stratfordshire R. Co., 4 F. & F. 738; Longabough v. Virginia City, etc., R. Co., 9 Nev. 271. And some judges have not hesitated to express themselves of a like opinion. Piggott v. Eastern Counties R. Co., 3 M. G. & S. 230; Chicago, etc., R. Co. v. Quaintance, 58 Ill. 389.

In Small v. Chicago, etc., R. Co., 50 Iowa 338, s. c., 55 Iowa, 582, Beck, J., says: "It may be said, as fire must be used in running an engine, the railroad company cannot dispense with it, and whenever used it is liable to escape through accident, and cannot be certainly controlled. But this conclusion we cannot admit. We are of the opinion that contrivances may be applied to engines that would prove just as effectual in preventing the escape of fire as a fence is in preventing cattle going upon a railroad track. Whether such contrivances are in use we know not, and it is not important to inquire; that they may be applied cannot be doubted when we contemplate the resources which science brings to the aid of machinists; at all events the law, in holding railroad companies liable for damages resulting from fires set out by their engines, presumes they may prevent injuries resulting in that way

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What Amounts to Negligence in the Construction of an Engine. It has been held as a matter of law that an engine which throws burning brands to the distance of one hundred feet has not such safeguards as the law requires. Jackson v. Chicago, etc., R. Co., 31 Iowa, 176. See Ill. Cent. R. Co, v. McClelland, 42 Ill. 355. But a company is not bound to use everything which mechanical skill or ingenuity can devise, whether it be known or not, or capable of being obtained or not. Before a company can be held liable for not using such improved contrivances, it must be shown, both by use and experience of men, to be superior and effectual. A company is not bound to purchase a patent for every invention which is claimed to be an improvement. Spaulding v. Chicago, etc., R. Co., 30 Wis. 110; Toledo, etc., R. Co. v. Pindar, 53 Ill. 447; Longabough v. Virginia City, etc., R. Co., 9 Nev. 271;

St. Louis, etc., R. Co. v. Gilham, 39 Ill. 445; Anderson v. Cape Fear Steamboat Co., 64 N. Car. 399; F. & B. Turnpike Co. v. Phila., etc., R. Co., 54 Pa. St. 545. But if a particular safeguard has been tested and found to meet the purpose, the company must use it. Toledo, etc., R. Co. v. Corn, 71 Ill. 493. See Steinweg v. Erie R. Co., 43 N. Y. 123; Pittsburgh, etc., R. Co. v. Nelson, 51 Ind. 150; Freemantle v. London & N. W. Ry. Co., 10 C. B. (N. S.) 89; Dimmock v. North Staffordshire Ry. Co., 4 F. & F. 1058; Freemantle . Ñ. W. Ry. Co., 2 F. & F. 340. If a spark-arrester will prevent the fire, it is negligence per se not to use it. Anderson v. Cape Fear Steamboat Co., 64 N. Car. 399; Bedell v. Long Island R. Co., 44 N. Y. 367. But in other cases this is considered a question for the jury. Lackawana, etc., R. Co. v. Dook, 52 Pa. St. 379; . Kellogg_v. Milwaukee, etc., R. Co., 1 Cent. L. Jour. 278; Algier v. Steamer Maria, 14 Cal. 167; Freemantle v. London & Northwestern Ry. Co., 10 C. B. (N. S.) 89.

Evidence-Evidence of the use of the stack by others is admissible on the question of the safety of the stack. F. & B. Turnpike Co. v. Phila., etc., R. Co., 54 Pa. St. 345. As is also evidence that the company changed the stack after the accident happened. St. Joseph, etc., R. Co. v. Chase, 11 Kan. 471. A general usage as to inspection of each engine as it arrived at the shops may be proven. Chicago, etc., R. Co. v. Quaintance, 58 Ill. 389. But evidence of the condition of other engines than the one producing the fire cannot be admitted. Erie R. Co. v. Decker, 78 Pa. St. 293.

1. Chicago, etc., R. Co. v. Quaintance, 58 Ill., 389; Chicago, etc., R. Co. v. Clampit, 63 Ill. 95. If the company show that its engines are the best in use and were carefully inspected every day by a competent person, and that they were skilfully managed, it would seem that it is relieved from liability. Spaulding v. Chicago, etc., R. Co., 30 Wis. 110. But this must be shown directly, and evidence of usage is not sufficient. Baltimore, etc., R. Co. v. Shipley, 39 Ind. 251. See BURDEN of PROOF, infra.

Whether due care was used in operating the engine is a question of fact to be determined by the jury from all the facts and circumstances in the case.1

1. Johnson v. Chicago, etc., R. Co., 31 Minn. 57; s. c., 13 Am. & Eng. R. R. Cas. 460. In this case the engineer testified: "I handled the engine very carefully, but did not operate the engine any differently from what I usually did. I handled the engine with a great deal of care upon that occasion while in Farmington." The court say: "It was proper for the jury to consider this evidence in connection with the fact that a very high wind was prevailing; that the place was a village, with buildings standing near the railway track, and where the property of many persons would be exposed to danger from the burning of a single building. While the engineer was, as the verdict shows, ordinarily a careful man in his business, it may still be that the care which he usually exercised was not such as common prudence apparently demanded on this occasion. The fact as to whether proper care was exercised was left to rest only on the opinion of the engineer. None of the facts as to the manner of operating the engine were presented. The reason or necessity for the discharging of an unusual quantity of sparks (if the fact was so) was not explained."

The expression 'ordinarily prudent man,' or ' 'ordinary care,' without qualification, suggests merely the care that should be bestowed in cases of ordinary danger. They are expressions inappro, priate where the danger is extraordinary, unless they are explained and applied to the subject. If the danger is great the care should be great in proportion. The ordinary care of an engineer on a railroad locomotive is a very high degree of care, and the skill required is a very high degree of skill. Such an engineer is an ordinarily prudent man' of his class, and the phrase, thus explained, would be correct. Diamond v. Northern Pacific R. Co., 6 Mont. 580; s. c., 29 Am. & Eng. R. R. Cas. 124.

In an action to recover for damages for a fire set by a locomotive the jury found that the engine from which the fire escaped was of the most improved invention and construction, so far as the appliances for preventing the escape of fire were concerned;" and also found that the engine was in good condition, so far as all the appliances for preventing the escape of fire were concerned;" and also found that the engineer who managed

the engine from which the fire is claimed to have escaped was a "competent, skilful, and careful engineer." There was no evidence introduced tending to show that the engineer mismanaged the engine, or that he was negligent in any respect with regard to its management; and the jury did not find that there was any mismanagement or negligence on the part of the engineer; but in answer to the following question put to the jury, to wit, "How did he so mismanage his engine as to set out the fire?" the jury answered, "We cannot tell." And in answer to the further question put to the jury, to wit, "In what does the negligence of the railroad company in permitting the fire to escape from its engine or train consist?" the jury answered, "We cannot tell." "Under the findings of the jury and the evidence, we must, therefore, consider that the engine was complete and perfect in every respect, so far as the appliances for preventing the escape of fire were concerned, and the engineer was a competent, skilful and careful engineer, and that there was nothing in the case tending to show that he was negligent in the management of his engine; and we cannot imagine where there could be any other room for negligence on the part of the railroad company in permitting the fire to escape which is supposed to have caused the injury." Atchison, etc., R. Co. v. Riggs, 15 Am. & Eng. R. R. Cas. 531; s. c., 31 Kan. 622.

The correct rule seems to be, that where, upon the facts proved, different minds may draw different conclusions as to whether or not such facts establish negligence or the absence of it, the question is one proper to submit to the jury. Lincoln v. Gillilan, 18 Neb. 114; Philadelphia, etc., R. Co. v. Schultz, 93 Pa. 341; s. c., 2 Am. & Eng. R. R. Cas. 271.

The fact that the same engine has set several successive fires on the same trip and the same day tends to show improper construction, operation, or want of repair. Slossen v. Burlington, etc., R. Co., 60 Iowa, 215; s. c., 7. Am. & Eng. R. R. Cas. 509.

To overload a locomotive is negligence. Toledo, etc., R. Co. v. Pindar, 53 Ill. 447.

The company has the right to use any kind of fuel in common use, even inferior, unless its use was known to it to be hazardous. Collins v. New York, etc., R.

V. Proof of Origin of Fires.-It devolves on the plaintiff to prove by a preponderance of the evidence that the fire was communicated by sparks or cinders from the railway engines. It need not be shown that any particular engine was at fault, but it will be sufficient if the fire is proved to have been set out by any engine passing over the defendant's railway, and the evidence may be wholly circumstantial, as, first, that it was possible for fire to reach the plaintiff's property from the defendant's engines; and, second,

Co., 5 Hun (N. Y.), 499. But where wood was used in a coal-burning engine it was held that negligence might be inferred. St. Joseph, etc., R. Co., 11 Kan. 47; Chicago, etc., R. Co. v. Quaintance, 58 Ill. 389. In New Brunswick R. Co. v. Robinson, 11 Sup. Ct. of Canada, 689; s. c., 29 Am. & Eng. R. R. Cas. 132, R. owned a barn situated about two hundred feet from the New Brunswick R. Co.'s line, and such barn was destroyed by fire, caused, as was alleged, by sparks from the defendant's engine. An action was brought to recover damages for the loss of said barn and its contents. On the trial it appeared that the fuel used by the company over this line was wood, and evidence was given to the effect that coal was less apt to throw out sparks. It also appeared that at the place where the fire occurred there was a heavy up grade, necessitating a full head of steam, and therefore increasing the danger to surrounding property. The jury found that the defendant did not use reasonable care in running the engine, but in what the want of such care consisted did not appear by their finding. Held, reversing the judgment of the court below, that the company were under no obligation to use coal for fuel, and the use of wood was not in itself evidence of negligence; that the finding of the jury on the question of negligence was not satisfactory, and that therefore there should be a new trial.

So if using a greater amount of steam than is necessary causes the engine to emit an unusually large number of sparks, it is negligence. Great Western Ry. Co. v. Haworth, 39 Ill. 346. Under the particular circumstances of the case it was held that putting an unusually large quantity of coal in the firebox was not negligence. Phila., etc., R. Co. v. Gerges, 73 Pa. St. 121.

In an action to recover damages for property alleged to have been destroyed by fire set by defendant's engine, an instruction that "negligence may be evidenced in various ways, such as the employment of an unskilful or careless

engineer and fireman; and if you find from the evidence that the defendant carelessly or negligently managed its road in this respect, and that by reason of such negligence a fire was set, the defendant is liable,"-in effect directs the jury that if they find that the engineer and fireman were unskilful, and that by reason of such lack of skill the fire was set, then the plaintiff is entitled to recover; and when the complaint in such action alleges that the defendant permitted the engine to be out of repair, and carelessly and negligently used, thus charging that the engineer and fireman were negligent, and there is no allegation that they were unskilful, such instruction is erroneous. Babcock v. Chicago, etc., R. Co. (Iowa), 33 N. W. Rep. 628.

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Unlawful Rate of Speed.-In Martin v. West. U. R. Co., 23 Wis. 437, Dixon, J., in delivering the opinion of the court, says (p. 440): We have no doubt that the danger to buildings and other adjacent property liable to injury and destruction by fire caused by the emission of coals and sparks from the engine when in rapid motion was one of the mishaps which the statute limiting the rate of speed through cities and villages was designed to prevent, and are therefore of the opinion that for losses so occasioned by trains moving at a greater rate of speed than the statute prescribes the company is responsible."

But in an action against a railway company for the value of property destroyed by fire alleged to have been caused by its negligence in running a train, it appeared that the train was running within a village at an unlawful rate of speed. viz., at a greater rate than six miles per hour (R. S. secs. 1809, 4393); and that the train consisted of only two cars, and was running on a straight line; and the grade was not shown. There was no other evidence that the undue speed increased the danger of fire. Held, that it was error, as against defendant, to submit that question to the jury. Brusberg v. Milwaukee, etc., R. Co., 50 Wis., 231; s.C., 2 Am. & Eng. R. R. Cas. 264

facts tending to show that it probably originated from that cause and from no other.1

1. Field v. New York, etc., R. Co., 32 N. Y. 339; Karsen v. Milwaukee, etc., R. Co., 29 Minn. 12; s. c., 7 Am. & Eng. R. R. Cas. 501.

It is competent to prove that coals of fire had previously been found on the defendant's track, or had been dropped from its engines at or near the place where the fire was set out. Such proof not only renders it probable that the fire was communicated from the furnace of one of the defendant's engines, but also raises an inference of some neglect that there was something unsuitable and improper in the construction of the engine which caused the fire. Sheldon v. Hudson River R. Co. 4 Kern. (N. Y.) 218. To the same effect, Ross v. Boston, etc., R. Co., 6 Allen (Mass.), 87; Smith v. Old Col. R. Co., 10 R.I. 22; St. Joseph, etc., R. Co. v. Chase, II Kan. 47; Huyett v. Phila., etc., R. Co., 23 Pa. St. 373.

The reason for this proof is very clearly stated in the case of Longabaugh v. Virginia City, etc., R. Co., 9 Nev. 271. Witnesses were permitted to testify that previous to the fire which occasioned the injury they had frequently seen fires in the same wood-yard, caused by coals dropped from the defendant's engines, and also at various times at the same place had seen sparks from the defendant's engines of sufficient size to set fire to cord wood. The court in commenting on this say: "Plaintiff's wood caught fire in some manner to him at the time unknown. How did the fire originate? This was the first question to be established in the line of proof. Positive testimony could not be found. The plaintiff was compelled from the necessities of the case to rely upon circumstantial evidence. What does he do? He first shows, as in the New York cases, the improbabilities of the fire having originated in any other way except by coals dropping from defendant's engines. He then shows the presence in the wood-yard of one of the engines of the defendant within half an hour prior to the breaking out of the fire; then proves that fires have been set in the same wood-yard within a few weeks prior to this time from sparks emitted from defendant's locomotives.'

Proof of the same character was sustained by the Supreme Court of the United States in Grand Trunk R. Co. v. Richardson, 91 U. S. 454. It is said: "The question, therefore, is, whether it tended in any degree to show that the burning of the bridge and the consequent

destruction of the plaintiff's property was caused by any of the defendant's locomotives. The question has often been considered by the courts of this country and in England, and such evidence has, we think, been generally held admissible as tending to prove the possibility, and a consequent probability, that some locomotive caused the fire, and as tending to show a negligent habit of the officers and agents of the railroad company."

Maule. J., in Piggott v. Eastern Ry. Co., 3 Q. B. 242, held that such evidence was competent. The matter in issue was whether or not the plaintiff's property had been destroyed by fire proceeding from the defendant's engines; and involved in that issue was the question whether or not the fire could have been so caused. the purpose of showing that it could; and for that purpose it was clearly material and admissible. And see Henry 7. South Pac. R. Co., 50 Cal. 176; Field 7. New York Cent. R. Co., 32 N.Y. 339; Ross v. Boston, etc., R. Co, 6 Allen (Mass.), 86. If the origin of the fire is admitted, it would seem that such evidence is not admissible. Smith v. Old Colony R. Co., 10 R. I. 22.

The evidence was offered for

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Proof that the same engine on the same trip'caused other fires is admissible. Atchison, etc., R. Co. v. Bales, 16 Kan. 252; Patton v. St. Louis, etc., R. Co.. 87 Mo. 117; s. c., 23 Am. & Eng. R. R. Cas. 364; Slosson v. Burlington, etc, R. Co., 60 Iowa, 215; s.c., 7 Am. & Eng. R. R. Cas. 509.

At the trial of an action against a railroad corporation for the destruction of the plaintiff's property by fire alleged to have been communicated from a locomotive engine of the defendant on its outward trip, the defendant introduced evidence that the engine was furnished with the ordinary appliances of a cone and netting for arresting sparks, which netting was examined on arrival at the end of the route on the return trip the following day, and found to be whole and in good condition; and that the engine on the return trip was in the same condi tion and used the same kind of fuel as on the outward trip. Held, that it was competent for the plaintiff to show in rebuttal that the engine on the return trip emitted sparks which set fire to property in the same neighborhoed. Loring v. Worcester, etc., R. Co., 131 Mass. 409.

And proof is admissible to show that the same engine at other times emitted

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