v. Railroad Co., 14 N. Y. 218; Smith v. Railroad Co., 10 R. I. 22; Railroad Co. v. Richardson, 91 U. S. 454, 470, 23 L. Ed. 356. Exceptions overruled.

NOTES OF RECENT CASES RELATING TO RAILROAD

FIRES.

In LOUISVILLE AND NASHVILLE R. R. Co. v. MARBURY LUMBER Co. (Alabama, January, 1900), 28 So. Rep. 438, action brought by the lumber company against the railroad company, the complaint contained three counts, which were as follows: "1. Plaintiff claims of defendant the sum of twenty-five hundred dollars ($2,500) as damages, for that heretofore, to wit, the 13th day of January, 1897, the defendant negligently set fire to and destroyed, to wit, seventy bales of cotton, the property of the plaintiff, located on the premises of the plaintiff, of the value to wit, twenty-five hundred dollars ($2,500), to plaintiff's great damage as aforesaid. 2. The plaintiff claims of the defendant the further sum of twentyfive hundred dollars ($2,500) for that heretofore, to wit, on the 13th day of January, 1897, the defendant negligently set fire to and destroyed, to wit, seventy (70) bales of cotton, the property of the plaintiff, of the value of, to wit, twenty-five hundred dollars, to plaintiff's great damage as aforesaid. 3. The plaintiff claims of defendant the further sum of twenty-five hundred dollars ($2,500) as damages, for that heretofore, on, to wit, 13th day of January, 1897, the defendant, by the negligence of its agents and servants who were then and there engaged in the operation of a train of cars and engine upon defendant's railway track at Bozeman, Alabama, negligently threw from said engine sparks which set fire to cotton, the property of plaintiff, of the value, to wit, twenty-five hundred dollars ($2,500), and by means thereof destroyed, to wit, seventy (70) bales of cotton, to the plaintiff's damage in the sum aforesaid." The defendant demurred to the complaint, but demurrer was overruled. On the trial there was a verdict for plaintiff for $2,358, but plaintiff consented to reduction to $2,218, and judgment accordingly. On appeal by defendant it was held that the complaint stated facts sufficient for cause of action, although TYSON, J., who delivered the judgment, dissented, holding that the demurrers to each count of the complaint should have been sustained.

In reviewing the evidence, TYSON, J., said: "The testimony offered by the plaintiff tended to show that sixty-six bales of cotton belonging to it, of the value of $2,200, located on its premises, fifty feet and two inches from the center of the defendant's track, were destroyed by fire originated by sparks emitted from passing

It was shown that there

engine No. 294, attached to freight cars. was no fire at the time in any of the buildings adjacent to the cotton from which a spark would probably have fallen; that the wind was blowing from the track in the direction of the cotton, at the time the train passed; that the train did not stop at the station, but ran by at a rapid rate of speed; and that the locomotive was emitting a great many sparks. The witnesses for the plaintiff say that the only thing they noticed unusual about the engine or the train was the rapid speed at which it was traveling when it passed. The evidence shows also that the train at this point was going up grade, and that an engine emits more sparks in climbing a grade than when running upon a level track, on account of the exhaust being greater. The evidence introduced by the defendant established without dispute that the train was a light one, and was managed by skilful persons in a proper manner; that the locomotive was equipped with the latest practical improved appliances to prevent, as far as possible, the emission of sparks, and was in good repair and condition; that the appliances upon this engine were such as are used by other well-regulated roads; that no appliance or equipment would prevent the escape of sparks; that the appliance upon this engine was a wire netting, with apertures in it to allow the exhaust to pass through; that, if the apertures were smaller than those in use upon this engine, it would cause it to choke, and when this occurred the engine would not produce steam; that when the train passed Bozeman station, where the cotton was destroyed, the engine was emitting no more than the usual amount of sparks, and the quantity of sparks escaping depends upon the exhaust-when great, the sparks would fly further and higher."

On the question of burden of proof it was held that where plaintiff proved loss of cotton by fire originating from defendant's engine and defendant showed, in rebuttal, that the engine was properly equipped with spark arresters, in good repair, and properly handled by competent employees, the burden shifted to plaintiff to show actual negligence of defendant. Judgment for plaintiff reversed.

In ST. LOUIS, IRON MOUNTAIN AND SOUTHERN R'Y CO. V. AYRES (Arkansas, January, 1900) 55 S. W. Rep. 159, action for damages for destruction of land and growing trees caused by sparks from defendant's engine, judgment for plaintiff for $322.50 was reversed. On the question of burden of proof the court said: "From the setting out of the fire the law presumes negligence, and, to overcome this presumption, the defendant must show due care at the time in the management and handling of the engine. It is not

sufficient to merely show that the engineer was competent and skilful, for competent and skilful men are sometimes negligent. This action is to recover damages caused by an injury by an alleged specific act of negligence, and if the engineer was negligent on this occasion, and his negligence caused the injury, it matters not how skilful and competent he was generally, the company is liable. The presumption is that he was negligent. It was his privilege to overcome this presumption by showing that on the occasion of setting out the fire such care was used as would overcome the presumption of negligence. Railway Co. v. Mitchell, 57 Ark. 418, 21 S. W. Rep. 883; Railway Co. v. Jones, 59 Ark. 105, 26 S. W. Rep. 595; Tilley v. Railway Co., 49 Ark. 540, 6 S. W. Rep. 8." On the question of measure of damages it was held that the measure was the difference between the value of the land with the trees burned and the trees unburned. It was also held that where plaintiff held his land for renting purposes, evidence of the rental value after the fire was admissible to show the extent to which the consequences of the fire might have been avoided by subsequent rental.

In SOUTHERN RAILWAY CO. v. WARD (Georgia, May, 1900), 36 S. E. Rep. 78, action for damages for destruction of plaintiff's property by fire from defendant's engine, judgment for plaintiff for $100 was reversed. The syllabus by the court states the case as follows:

"I. A petition which alleges that a railway company, by the use and running of their engines, locomotives, or other machinery, or otherwise, by the negligence of their agents, employees, or servants, set fire to and destroyed' the plaintiff's property, is amendable by the addition of a paragraph alleging that the fire in question was caused by the negligence of a section foreman in the employment of the company, and by setting forth the particulars as to the origin of the fire.

"2. Negligence causing the burning of a pasture fence does not entitle the owner to recover from the wrongdoer the value of the pasture for use and occupation for a longer period of time than would be reasonably necessary to replace the fence.

"3. An allegation, in a petition for the recovery of damages alleged to have been caused by the negligent setting out of fire upon the plaintiff's premises, that he was forced to call in his neighbors. and friends to assist him in checking the fire so set out, in order to save his residence from total destruction, for which labor and service petitioner is entitled to a specified amount, is without merit.

"4. As the petition contained averments which should have been

stricken on the special demurrers urged against the same, and as they were not so stricken, there should be another trial after the petition has been freed from the objectionable matter."

In LAKE ERIE AND WESTERN R. R. Co. v. MILLER (Ind. App. May, 1900), 57 N. E. Rep. 596, it was held that a complaint that

66

defendant, by its servants and employees, so negligently and carelessly conducted the running of its locomotive or engine by and along the line of plaintiff's said land that said engine fired the thick and high grass on defendant's right of way, and said company negligently let the same spread to plaintiff's blue-grass pasture adjoining said right of way, and burned over some thirty acres of plaintiff's land, and burned and destroyed fences for plaintiff, * and cord wood ** * and growing timber," etc., "all of the aggregate value," etc., and averred that damage to property was without any fault on plaintiff's part, stated facts sufficient to constitute a cause of action. Held, also, that there was evidence to support the special findings that the fire originated in defendant's right of way; that the fire was started from sparks from a passing engine on defendant's road; that the fire thus set escaped from the right of way; and that there was evidence from which a general finding for plaintiff was justified, and which supported every fact specially found. Judgment for plaintiff affirmed.

In CHICAGO AND EASTERN ILLINOIS RAILWAY Co. v. RosS ET AL. (Ind. App. February, 1900), 56 N. E. Rep. 451, action for damages. for corn destroyed by fire originating on defendant's right of way, judgment for plaintiff was affirmed. COMSTOCK, J., said: "The complaint is in two paragraphs. The first alleges that appellant, on the 29th day of September, 1897, carelessly and negligently caused fire to be set out upon its right of way, and that it escaped therefrom into a piece of ground, grown up with weeds and grass, lying immediately west of its right of way and east of what is known as the right of way of the Vandalia Railroad Company; that the fire caught in an old depot on the Vandalia right of way, and in two cars of shelled corn, owned by the appellees, standing immediately east of the depot, on the side track of the Vandalia Railroad, burning up and destroying the corn, of the value of $, and also burning up two cribs, belonging to appellees, standing on the right of way of said Vandalia Road, near the depot, of the value of $55. The second paragraph alleges the same facts, with the addition that the appellant, having set out the fire on its right of way, negligently permitted it to escape therefrom, causing the damage for which. they sue. The cause was put at issue, and a trial by the court VOL. VIII-40

resulted in a judgment in favor of appellees for $420.75." In discussing the reasons advanced by defendant for a new trial one of which was that the court erred in excluding the following question, and answer thereto, on cross-examination of the witness Warner McClure: "Was there anything to prevent the engineer at that time from drawing those cars out of there — the cars with corn in them?" the court said: "In support of this claim appellant contends that the following facts were shown: The depot or old warehouse, west of the Vandalia track, had just started to burn. The two cars loaded with corn were immediately east of the old depot. A switch engine, not connected with any car, ran upon the track, coming from the north, near the burning building, and stopped, but made no effort to pull out the cars, which were not at that time on fire, until they were fully burning. A sufficient time elapsed between the engine's coming up and the time the cars caught fire to have pulled them out. The corn had been stored in these cars, which belonged to the Vandalia Road, for two weeks, and had been consigned to no one. The engine belonged to and was operated by the Vandalia Road. It is contended that, if the Vandalia neglected to draw the cars away from the fire when there was nothing to prevent it from doing so, it was negligence on its part, making it liable to appellees. We think the objection not well taken. The question was the liability of appellant. The fact that the Vandalia had failed of its duty, after the negligence of the appellant, would not release the appellant from liability on account of its negligence."

Continuing, the court said: "Counsel for appellant contend that as the fire was communicated to the old depot or wareroom on the Vandalia right of way, and from thence to the cars containing appellee's corn, there can be no recovery, because the negligence of appellant in setting out the fire on its right of way would not be the proximate cause of the destruction of the corn; that the destruction was caused by an intervening agency [citing several cases]

* There was evidence before the trial court that for a month before the fire the weather had been exceedingly dry;' that at the time the fire was set out the wind was blowing from the east, 'right toward the old depot;' that it continued to blow; that there was no new intervening cause. The authorities are conflicting as to the application of the maxim, "Causa proxima et non remota spectatur," to the facts in different cases. Some of them we cite: Pierce, R. R. 442, and cases cited; Binford v. Johnston, 82 Ind. 426; Billman v. Railroad Co., 76 Ind. 166; Henry v. Railroad Co., 50 Cal. 176: Perry v. Railroad Co., 50 Cal. 578; Railroad Co. v. Kellogg, 94 U. S. 469, 24 L. Ed. 256; Railroad Co. v. Stanford, 12 Kan. 354; Fent