1

jury is done in consequence thereof, the liability attaches, and it is immaterial whether the proof establishes gross negligence or only a want of ordinary care on the part of defendant." But there must be some evidence which will warrant imputing the injury to the negligence or misconduct of the defendant or his servants, and the burden is upon the plaintiff to make this showing. The plaintiff makes out this part of his case by showing that the fire was kindled when and where it would be likely to spread as it did, or pass beyond control, or that it was left without proper care afterwards. If the fire was kindled by a servant while engaged about his master's business, *and [*591] acting within the general scope of the employment, it is

no excuse for the master that the servant departed from his instructions in doing so. A case of spontaneous combustion may be one of negligent fire, if ignition was reasonably to be looked for. It is immaterial whether the fire spreads by running along

Hewey . Nourse, 54 Me. 256, citing Barnard v. Poor, 21 Pick. 378; Bachelder v. Heagan, 18 Me. 30; Tourtellot v. Rosebrook, 11 Met. 462; Dean v. McCarty, 2 Up. Can. Q B. 448. In Scott v. Hale 16 Me. 326, the care required was "that degree of carefulness which a discreet, prudent and careful man would do in the possession of his own premises." Fahn. Reichart, 8 Wis. 255; Mich. Cent. R. R. Co. v. Anderson, 20 Mich. 244. Ordinary care must be used in setting and in restraining it. Sweeney v. Merrill, 16 Pac. Rep. 454, (Kan.).

See

2 Clark v. Foot, 8 Johns. 421; Hanlon v. Ingram, 3 Iowa, 81; Gagg v. Vetter, 41 Ind. 228; Clealand v. Thornton, 43 Cal. 437; Stuart v. Hawley, 22 Barb. 619; Teall v. Barton, 40 Barb. 137; Calkins . Barger, 44 Barb. 424; Miller v. Martin, 16 Mo. 508; Averitt v. Murrell, 4 Jones, (N. C.) 322; Fahn v. Reichart, 8 Wis. 255. See Sturgis v. Robbins, 62 Me. 289, (under statute); Gillson v. North Grey. &c., 33 Up. Can. Q. B. 128; S. C. 35

Up. Can. Q. B. 475; Catron v. Nich. ols, 81 Mo. 80.

* Higgins v. Dewey, 107 Mass. 494; S. C. 9 Am. Rep. 63; Cleland v. Thornton, 43 Cal. 437; Garrett v. Freeman, 5 Jones, (N. C.) 78; Hewey v. Nourse, 54 Me. 257; Fahn v. Reichart, 8 Wis. 255; Barnard v. Poor, 21 Pick. 378; Jacobs v. Andrews, 4 Iowa, 506. Leaving an oil can on a hot stove is evidence of negligence. Read v. Penn. R. R. Co. 44 N.J L. 280. See, also, a carefully considered case where after a fire had burnt four or five days and some effort had been made to extinguish it, it escaped and the landowner was held liable. Furlong v. Carroll, 7 Ont. App. 145.

4 Johnson v. Barber, 10 Ill. 425; Armstrong . Cooley, 10 Ill. 509. Compare Wilson v. Peverly, 2 N. H. 548; Garrett v. Freeman, 5 Jones, (N. C.) 78. But for negligence of an independent contractor in clearing land the owner is not liable. Ferguson v. Hubbell, 97 N. Y. 507.

the ground or by sparks or brands being carried through the air by the wind.1

The setting of fires, under certain circumstances, is sometimes prohibited by statute because of the great danger of injurious consequences. This is the case in some States where large prairies exist. Whoever unlawfully sets a fire thus prohibited must take all the consequences." The same must be true in any case where the kindling of the fire was a trespass or otherwise unlawful.3

2

Fires Communicated by Machinery. Steam machinery is so exceedingly liable to cause unintentional fires that special precautions are required to prevent them. But where the use is lawful, the principles already mentioned apply. If fires are kindled by sparks or otherwise in the use of it, no action lies unless negligence appears. But it is negligence if those employing such machinery fail to make use of approved appliances for arresting sparks, or if the machinery, by reason of being

unsuitable or out of order, is likely to scatter fire." And [*592] in the *case of railroad engines it has been repeatedly decided that the fact that fire had been communicated by

1

Higgins v. Dewey, 107 Mass. 494. See Ayer v. Starkey, 30 Conn. 304.

2 Burton v. McClellan, 3 Ill. 434. See Finley v. Langston, 12 Mo. 120.

3 This rule was applied in Jones v. Festiniog R. Co., L. R. 3 Q B. 733, to an incorporated company using a steam engine which it was held under its charter it had no right to employ. But the fact that a fire started from hot ashes kept contrary to the ordinance in a wooden barrel is not conclusive of negligence. Cook v. Johnston, 58 Mich. 437.

4 Burroughs v. Housatonic, &c., R. R. Co., 15 Conn. 124; Hoyt v. Jeffers, 30 Mich. 181; Jefferis v. Philadelphia, &c., R. R. Co., 3 Houst. 447. See Huyett. Philadelphia, &c., R. R. Co., 23 Penn. St. 373; McCready v. Sou. Car. R. R. Co., 2 Strob. 356; Hull v. Sac. Val. R. R. Co., 14 Cal., 387; Sheldon v. Hud. Riv. R. R. Co.,

29 Barb. 226; Hinds . Barton, 25 N. Y. 544; Teall v. Barton, 40 Barb. 137. It is evidence of negligence if a burning stick is thrown upon a right of way covered by grass. Mobile, &c., R. R. Co. v. Gray, 62 Miss. 383. Where an unlicensed engine is a nuisance, a recovery for damage from a fire caused by it cannot be maintained on the mere ground that no license had been taken out. Burbank . Bethel, &c., Co., 75 Me. 373.

5 Ill. Cent. R. R. Co. v. McClelland, 42 Ill. 355; Frankford, &c. Co. v. Philadelphia, &c., R. R. Co., 54 Penn. St. 345; Hoyt . Jeffers, 30 Mich. 181; Anderson . Cape Fear Steamboat Co., 64 N. C. 399; Chicago, &c., R. R. Co. v. McCahill, 56 Ill. 28; Toledo, &c. R. R. Co., . Corn, 71 Ill. 493. If a spark arrester is of an approved pattern and in good order there is no liability. Hoff v. West

them to the premises of individuals is sufficient to raise a presumption that the railroad company was not employing the best known contrivances to retain the fire and to make out a prima facie case of negligence.' Still, as the business itself is lawful, all that can be required is that it be managed with a care proportioned to its risks; the law cannot require that which is unusual.

In some States statutes exist which either render railroad companies responsible for all injuries by fire originating with their engines, or which expressly impose upon them the burden of showing that the fire originated without negligence on their part.*

It is held to be negligent in a railroad company to leave grass

Jersey R. R. Co., 45 N. J. L. 201. But the fact that a fire has occurred from sparks may be evidence that the arrester is imperfect. Alpern v. Churchill, 53 Mich. 607. It must, of course, be made to appear that the burning was the natural and proximate consequence of the defendant's carelessness, and ought to have been foreseen. Milwaukee, &c., R. R. Co. v. Kellogg, 94 U. S. 469; Penn. R. R. Co. v. Hope, 80 Penn. St. 373; Lehigh, &c., R. R. Co. v. McKeen, 90 Penn. St. 122. See cases on page 85, et seq. ante.

Pigott . East. Counties R., 3 C. B. 229; Ill. Cent. R. R. Co. v. Mills, 42 Ill. 407; Ellis v. Portsmouth, &c., R. R. Co., 2 Ired. 138; Galpin v. Chicago, &c., R. R. Co., 19 Wis. 638; Spalding. Chicago, &c., R. R. Co., 30 Wis. 110; Brusberg v. Milw., &c., Ry. Co, 55 Wis. 106; Miller v. St. Louis, &c., Ry. Co., 90 Mo. 389. See Erd. Chicago, &c., R. R. Co., 41 Wis. 65.. But the case is only prima facie. Tilley v. St. Louis, &c., Ry. Co., 6 S. W. Rep. 8 (Ark.). And see Ruffner v. Railroad Co., 34 Ohio St. 96, contrary to the cases above.

Mich. Cent. R. R. Co. v. Coleman, 28 Mich. 440; Frankford, &c., Co. v.

Philadelphia, &c., R. R. Co.,54 Penn. St. 345; Jefferis v. Philadelphia, &c., R. R. Co., 3 Houst. 447; Aldridge v. Great West. R. R. Co. 3 M. & Gr. 515; Toledo, &c., R. R. Co. v. Corn, 71 Ill. 493.

3 See Lyman v. Boston, &c., R. R. Co., 4 Cush. 288; Hart v. Western R. R. Co., 13 Met. 99; Ingersoll v. Stockbridge, &c., R. R. Co., 8 Allen, 438; Perley v. Eastern R. R. Co., 98 Mass. 414; Chapman v. Atlantic, &c., R. R. Co., 37 Me. 92; Pratt v. Same, 42 Me. 579; Stearns v. Same, 46 Me. 95; Chicago, &c., R. R. Co. v. McCahill, 56 ill. 28; Baltimore, &c., R. R. Co. v. Shipley, 39 Md. 251; Hooksett v. Concord, &c., R. R. Co., 38 N. H. 242; Rowell v. Railroad, 57 N. H. 132. For a case arising under the Vermont statute, see Grand Trunk R. Co. v. Richardson, 91 U. S. 454. If the property burned is not covered by the statute, negligence must be shown. Lowney . New Brunswick, Ry. Co., 78 Me. 479. If a fire started on A's land is allowed to burn at his request, and thence reaches B's land, the railroad is liable to B. Simmonds v. New York, &c., R. R. Co., 52 Conn. 261

and other combustibles lying along the track, where they are peculiarly liable to take fire by falling sparks or coals. The rules

of contributory negligence apply here, as in other cases, [*593] *but the fact that the neighboring land owner leaves grass and other combustibles on his premises, near the road, does not render him chargeable with contributory negli gence; the obligation of care to prevent fires resting not upon him, but upon the company."

The explosion of a steam boiler whereby one is injured is held in Illinois prima facie evidence of negligence in those having the management of it; but this does not seem to be the rule elsewhere."

Injuries by Fire-Arms and Explosives. When one makes use of loaded weapons, he is responsible only as he might be for any negligent handling of dangerous machinery, that is to say, for a care proportioned to the danger of injury from it.' The firing of guns for sport or exercise is not unlawful if suitable place is chosen for the purpose; but in the streets of a city, or in any place where many persons are congregated, it might be negligence in itself. In New York a military officer has been held liable for negligence in ordering the firing of blank cartridges by the men under his command, at an assembled crowd of people, whereby one of them was injured.' But the owner of a vessel is not responsible for an injury caused by the firing of a gun therefrom, where the firing was by one of the crew, not in the line of his employment and against the owner's *or- [*594] ders. An injury by a young child with a loaded gun placed in its hands negligently by another, is the wrong of the person putting it in his hands.

If one deliver to a carrier explosive articles for transportation, without disclosing what they are, he will be responsible to parties injured if an explosion takes place.

476; S. B. New World . King, 16 How. 469; Marshal o. Welwood, 38 N. J. 339.

' Underwood ». Hewson, Stra. 596; Weaver o. Ward, Hob. 134; Chataigne v. Bergeron, 10 La Ann. 699. See Sutton v. Bonnett, 16 N. E. Rep. 180 (Ind).

• See Conklin v. Thompson, 29 Barb. 218, case of injury by fright from exploding fire crackers. Compare Cole v. Fisher, 11 Mass. 137; Bissell. Booker, 16 Ark. 308. The president of a club, in the name of which a meeting is held, is liable to one injured in the street by the explosion of fireworks at the meeting, when he has paid for the fireworks. Jenne. Sutton, 43 N. J. L. 257. "Shooting at a mark is lawful, but not necessary, and may be dangerous, and the law requires extraordinary care to prevent injury to others; and if the act is done where there are ob

So if he put articles

jects from which the balls may glance and endanger others, the act is wanton, reckless, without due care, and grossly negligent." BUTLER, J., in Welch v. Durand, 36 Conn. 182, 185, citing Bullock v. Babcock, 3 Wend. 391, approving Y. B. 21 H. vii., 28 a. The owners of fair grounds permitting target shooting thereon are liable to one whose horse is hit thereby. Conradt v. Clauve, 93 Ind. 476.

Castle . Duryee, 2 Keyes, 169. 4 Haack v. Fearing, 5 Rob. 528. 5 Dixon v. Bell, 5 M. & S. 198; S C. 1 Stark. 287. A child too young to understand the effects of exploding powder, and who injures himself therewith may have his action against the person who sold it to him. Carter v. Towne, 98 Mass. 567. It is a nuisance to explode fireworks in streets. Conklin . Thompson, 29 Barb. 218.

6 Williams v. East India Co., 3 East,