Bartol, C. J.,
delivered the opinion of the Court.
This is a suit by the appellee to recover damages for the destruction of cord-wood and timber by fire, alleged to have been occasioned by the engines of the appellant.
Four bills of exception were taken by the appellant, the first three present questions of evidence, and the fourth brings up for review the rulings of the Circuit Court upon the prayers. These will be considered in their order.
First Exception. — The plaintiff, who was sworn as a witness, having proved the destruction by fire on the 28th of April, 1869, of a quantity of cord-wood and growing timber on his land, contiguous to the railroad, on the north side; proved that the fire had commenced on the track of the road, in some dry grass at the end of the cross-ties, and had thence spread up the bank, through the bark, old stumps and litter, over the land [135]*135condemned for the defendant’s road, and thence to the plaintiff’s wood and timber, situated, a part of it within forty feet of the track, and extending to the distance of about two hundred feet. That everything was very dry, and there was a high wind from the south-west; that from a distance south of the road, he saw the smoke about twenty minutes after the freight train passed up ; he also gave some evidence tending to prove the absence of other causes for the fire at that place, except the passage of the trains, to wit: “that there was no cutting in the woods that day, and no fire there, and that the cabin on the land occupied by laborers, was three hundred yards distant from the railroad ; and stated if it was set on fire by any train, it was the freight train that set „it on fire.”
“The witness then stated in reply to questions of the plaintiff’s counsel, that he had observed the engines of the defendant about that time; that within a week before he had seen them scattering large sparks in passing, which were capable of setting fire to combustible articles along the road; and that about a week before, he had put out a fire in the leaves caused by these sparks ; but he could not say that he had ever seen any such sparks from the locomotive 11 Annapolis,’ which was the engine that was drawing the freight train on the morning of the fire.”
Whereupon the defendant objected to the said questions, and to the said answers of the witness; but the Court overruled the objection, and admitted the evidence, and to this ruling, the defendant excepted.
We entertain no doubt that this was competent and admissible evidence, both for the purpose of proving that the fire in question, was occasioned by the locomotives,* and as tending to prove negligence on the part of the defendant, in the construction and management of its engines. Evidence of this kind was held to be admissi[136]*136ble in Piggott vs. The Eastern Counties Railway Co., 54 Eng. C. L., 228.
That was an action against- the railroad company for the destruction of the buildings and farming utensils on the plaintiff’s land, by fire alleged to be occasioned by the negligence of the defendants in the construction and management of their locomotives.
“In order to show that the fire was probably caused by sparks or particles of ignited coke emitted from the funnel, or from the fire-box of the engine by which the train was being propelled; the plaintiff’s counsel proposed to ask a witness whether he had not on other occasions observed sparks or ignited matter to proceed from engines of the defendants, passing along the line adjoining the plaintiff’s farm.” The trial below was before' Alderson, B., who admitted the evidence, and the question being reserved, was heard and decided by Tindal, C. J., Coltman, Maulé and Cresswell, who all concurred in the. opinion that the evidence was admissible. Colt-mar, J., said, “It appears from the report of the learned Judge, that the evidence in question was admitted, not for the purpose of showing a general habit of negligence on the part of the company, but to show that the injury might have been caused in the way suggested. It appears to me that the jury might reasonably infer that the fire was occasioned by sparks from the engine, and that the fact of the buildings being fired by sparks emitted from defendants’ engine, established a “prima faeié case of negligence, which called upon them to show that they had adopted some precautions to guard against such accidents.” In Cleaveland vs. Grand Trunk R. R. Co., 42 Vermont, 499, evidence of the same kind was decided to be admissible; and in Sheldon vs. Hudson River R. R. Co., 14 N. Y., 218, the Court of Appeals ruled-in the same way. It has been argued by the appellants’ counsel, that the decision last cited was “over[137]*137ruled ” in 29 Barbour, 226, when the same case afterwards came up before the Supreme Court. The case in 29 Barbour was before an inferior Court, and was ruled by three judges in the second judicial district; who were of course bound by the previous decision of the appellate Court. An examination of the cases will show that they are not in conflict. In 29 Barbour, the question of the admissibility of the evidence was not presented. The Court held that the testimony there offered was not sufficient in law to prove negligence on the part of the defendant. The onus by the law of New York being on the plaintiff.
Cinder the Code, Art. 77, sec. 2, it is not incumbent on the plaintiff in an action of this kind, to prove that the fire was caused by the defendant’s negligence; but the onus is cast on the defendant to disprove negligence on its part, or rather to show affirmatively that it has used reasonable care to prevent causing injury by fire from its engines. The law on this subject is laid down by this Court in Balto. & Susqh. R. R. vs. Woodruff, 4 Md., 242.
In that case, a question of evidence arose, and the decision is relied on by the appellant’s counsel, as an authority in support of his objection to the testimony set out in this bill of exceptions.
There the evidence offered was “that before the occurrence of the fires upon the plaintiff’s farm, fire had been communicated by the defendant’s engines, to property of other persons on said road, and that it had been burned in consequence of such fire.” The Court decided that such testimony was inadmissible, for the reasons stated on page 254; The question here presented is a very different one, and it seems to us that the ruling in Woodruff’s case has no application to this. There the evidence offered was that before the occurrence of the fire in question, other property had been set on fire by the locomotives of the defendant, no time was specified, it might have been, [138]*138as the Court said, “six months before, or five years.” Besides, such testimony would simply tend to prove that a passing locomotive is capable of setting fire to property near the railway, but could throw no light upon the question whether the fire complained of was in fact caused by the locomotives, or tend to show the existence of negligence in the particular case under consideration. Here the evidence was confined to the time of the occurrence, within a week of the happening of the fire on the plaintiff’s property; and pointed directly to the condition of the defendant’s engines, tending to prove that they were not in suitable repair at the time of the injury, and we think both upon reason and authority it was admissible for the purposes mentioned.
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Bartol, C. J.,
delivered the opinion of the Court.
This is a suit by the appellee to recover damages for the destruction of cord-wood and timber by fire, alleged to have been occasioned by the engines of the appellant.
Four bills of exception were taken by the appellant, the first three present questions of evidence, and the fourth brings up for review the rulings of the Circuit Court upon the prayers. These will be considered in their order.
First Exception. — The plaintiff, who was sworn as a witness, having proved the destruction by fire on the 28th of April, 1869, of a quantity of cord-wood and growing timber on his land, contiguous to the railroad, on the north side; proved that the fire had commenced on the track of the road, in some dry grass at the end of the cross-ties, and had thence spread up the bank, through the bark, old stumps and litter, over the land [135]*135condemned for the defendant’s road, and thence to the plaintiff’s wood and timber, situated, a part of it within forty feet of the track, and extending to the distance of about two hundred feet. That everything was very dry, and there was a high wind from the south-west; that from a distance south of the road, he saw the smoke about twenty minutes after the freight train passed up ; he also gave some evidence tending to prove the absence of other causes for the fire at that place, except the passage of the trains, to wit: “that there was no cutting in the woods that day, and no fire there, and that the cabin on the land occupied by laborers, was three hundred yards distant from the railroad ; and stated if it was set on fire by any train, it was the freight train that set „it on fire.”
“The witness then stated in reply to questions of the plaintiff’s counsel, that he had observed the engines of the defendant about that time; that within a week before he had seen them scattering large sparks in passing, which were capable of setting fire to combustible articles along the road; and that about a week before, he had put out a fire in the leaves caused by these sparks ; but he could not say that he had ever seen any such sparks from the locomotive 11 Annapolis,’ which was the engine that was drawing the freight train on the morning of the fire.”
Whereupon the defendant objected to the said questions, and to the said answers of the witness; but the Court overruled the objection, and admitted the evidence, and to this ruling, the defendant excepted.
We entertain no doubt that this was competent and admissible evidence, both for the purpose of proving that the fire in question, was occasioned by the locomotives,* and as tending to prove negligence on the part of the defendant, in the construction and management of its engines. Evidence of this kind was held to be admissi[136]*136ble in Piggott vs. The Eastern Counties Railway Co., 54 Eng. C. L., 228.
That was an action against- the railroad company for the destruction of the buildings and farming utensils on the plaintiff’s land, by fire alleged to be occasioned by the negligence of the defendants in the construction and management of their locomotives.
“In order to show that the fire was probably caused by sparks or particles of ignited coke emitted from the funnel, or from the fire-box of the engine by which the train was being propelled; the plaintiff’s counsel proposed to ask a witness whether he had not on other occasions observed sparks or ignited matter to proceed from engines of the defendants, passing along the line adjoining the plaintiff’s farm.” The trial below was before' Alderson, B., who admitted the evidence, and the question being reserved, was heard and decided by Tindal, C. J., Coltman, Maulé and Cresswell, who all concurred in the. opinion that the evidence was admissible. Colt-mar, J., said, “It appears from the report of the learned Judge, that the evidence in question was admitted, not for the purpose of showing a general habit of negligence on the part of the company, but to show that the injury might have been caused in the way suggested. It appears to me that the jury might reasonably infer that the fire was occasioned by sparks from the engine, and that the fact of the buildings being fired by sparks emitted from defendants’ engine, established a “prima faeié case of negligence, which called upon them to show that they had adopted some precautions to guard against such accidents.” In Cleaveland vs. Grand Trunk R. R. Co., 42 Vermont, 499, evidence of the same kind was decided to be admissible; and in Sheldon vs. Hudson River R. R. Co., 14 N. Y., 218, the Court of Appeals ruled-in the same way. It has been argued by the appellants’ counsel, that the decision last cited was “over[137]*137ruled ” in 29 Barbour, 226, when the same case afterwards came up before the Supreme Court. The case in 29 Barbour was before an inferior Court, and was ruled by three judges in the second judicial district; who were of course bound by the previous decision of the appellate Court. An examination of the cases will show that they are not in conflict. In 29 Barbour, the question of the admissibility of the evidence was not presented. The Court held that the testimony there offered was not sufficient in law to prove negligence on the part of the defendant. The onus by the law of New York being on the plaintiff.
Cinder the Code, Art. 77, sec. 2, it is not incumbent on the plaintiff in an action of this kind, to prove that the fire was caused by the defendant’s negligence; but the onus is cast on the defendant to disprove negligence on its part, or rather to show affirmatively that it has used reasonable care to prevent causing injury by fire from its engines. The law on this subject is laid down by this Court in Balto. & Susqh. R. R. vs. Woodruff, 4 Md., 242.
In that case, a question of evidence arose, and the decision is relied on by the appellant’s counsel, as an authority in support of his objection to the testimony set out in this bill of exceptions.
There the evidence offered was “that before the occurrence of the fires upon the plaintiff’s farm, fire had been communicated by the defendant’s engines, to property of other persons on said road, and that it had been burned in consequence of such fire.” The Court decided that such testimony was inadmissible, for the reasons stated on page 254; The question here presented is a very different one, and it seems to us that the ruling in Woodruff’s case has no application to this. There the evidence offered was that before the occurrence of the fire in question, other property had been set on fire by the locomotives of the defendant, no time was specified, it might have been, [138]*138as the Court said, “six months before, or five years.” Besides, such testimony would simply tend to prove that a passing locomotive is capable of setting fire to property near the railway, but could throw no light upon the question whether the fire complained of was in fact caused by the locomotives, or tend to show the existence of negligence in the particular case under consideration. Here the evidence was confined to the time of the occurrence, within a week of the happening of the fire on the plaintiff’s property; and pointed directly to the condition of the defendant’s engines, tending to prove that they were not in suitable repair at the time of the injury, and we think both upon reason and authority it was admissible for the purposes mentioned.
The fact that the witness was unable to say that he had observed sparks, &c., from the engine “Annapolis” is no valid objection to admitting the testimony. The declaration does not allege that the fire was caused by that particular engine, and the statement by the witness of his belief, that it was the freight train which .caused the fire, did not preclude the plaintiff from arguing or the jury from finding that it was caused by some other locomotive. It appears by the testimony of the same witness that three trains had passed that morning before the fire, one of them, a passenger train, had passed up the road only a few minutes before the freight train, and may have caused the fire, although it was not discovered till after the “Annapolis” had passed.
The second exception, presents the same legal question, as the first, and for the reasons before stated we are of opinion that the testimony of the witness Bryan, to which objection was made by the defendant was properly admitted.
No valid objection has been suggested to the testimony of Linthicum and Cole, contained in the third bill of exceptions. It was offered to rebut the evidence produced [139]*139by the defendant, on the question whether its engines were of proper construction and in good repair at the time of the fire. They were examined as experts, and a reference to the testimony of the plaintiff and of Bryan will show that the hypothetical case upon which their opinion was asked, had been abundantly established by proof; or to speak more accurately, evidence had been given from which the jury might so find, which is all that the rule of law requires as a basis for the admission of the testimony of experts.
Upon the prayers contained in the fourth bill of exceptions, the first material question presented for our consideration, is whether the plaintiff had such ownership of the property, as to entitle him to maintain this suit.
This question is raised by the second and third prayers of the defendant. It appears by the proof that the land was conveyed to the plaintiff in fee, by a deed from Williams and wife, on the 29th day of October, 1867, and on the same day, he executed to Alexander Randall Esq., a mortgage of the same, with other land, to secure the sum of $3000, payable in ten years from date, with the interest thereon, from the 1st day of January, 1868, payable annually.
The appellant contends that the legal title to the land being in the mortgagee, the right of action was exclusively in him and not in the mortgagor, whose title being merely equitable, could give him no standing in a Court of law. But in our opinion this is a mistaken view of the nature of the suit, which does not depend upon the ownership of the legal estate in the land. The Code, Art. 77, sec. 2, declares that the damage caused by such injury may be sued for and recovered u by the person injured by the fire.” It does not say that the holders of the legal estate in the land, where the fire occurs must sue; but the party injured by the fire. This must be construed as referring to the substantial owner, whether [140]*140his title be legal or equitable. In a case like the present where the party holding the fee simple, has encumbered the estate by a mortgage, which is not due, and is in possession, there can be no difficulty in saying that he is the party injured by a fire which destroyed the cord-wood and growing timber upon the land. He is the substantial owner of the property destroyed. Chancellor Kent, (4 Com., 160;) after stating the equity doctrine that the mortgage is a mere security for the debt, and only a chattel interest, and that until foreclosure, the mortgagor continues the real owner of the fee, proceeds to say, “The Courts of law have also by a gradual and almost insensible progress adopted these equitable views of the subject, which are founded in justice, and accord with the true intent and inherent nature of every such transaction. Except as against the mortgagee, the mortgagor while in possession, and before foreclosure, is regarded as the real owner, and a freeholder with the civil and political rights belonging to that character; whereas the mortgagee, notwithstanding the form of the conveyance, has only a chattel interest, and his mortgage is a mere security for a debt.”
The same views are held in Wilkins vs. French, 20 Maine, 116, 119; The City of Norwich vs. Hubbard, 22 Conn., 587. We refer also to 1 Hilliard on Mortgages, ch. 8, p. 151, and the authorities there collected in Note b. It is said this law does not prevail in Maryland, and Jamieson vs. Bruce, 6 G. & J., 72, has been cited by appellant’s counsel, as establishing a different doctrine. That was the case of a mortgage of personal property, where there was no agreement that the mortgagor should retain possession; the mortgagee took possession of the property without the knowledge or consent of the mortgagor, and it was held that the latter could not maintain trespass against him for the asportation; because as between the mortgagee and mortgagor, the legal property was in the former.
[141]*141In the opinion of the Court delivered by Judge Archer, it is said, “although there may be cases in which a Court of Law, as well as a Court of Equity, would treat the mortgagor as the substantial owner, yet we are satisfied unless there be some agreement between the parties, the mortgagee is entitled to possession when he chooses to exercise the right.”
In Tucker vs. Sumwalt, 34 Md., 89, it was held that the mortgagee has no estate in the land, except the dry legal title, which cannot be affected by a lion of a judgment against him.
Looking at the nature of the estate held by the plaintiff, we are of opinion that he was the party entitled to sue, as the substantial owner of the property, and the party injured by the fire, within the meaning of the Code; and consequently, that there was no error in rejecting the second and third prayers of the defendant, and in instructing the jury “ that if they should find for the plaintiff under his first prayer, he was not precluded from recovering, by reason of the mortgage to Mr. Randall, if they should find that he was left in possession of the property from January, 1868, up to and at the time of the injury.”
The next material question argued at the bar, grows out of the fact, that the fire in this case began on the track of the railway, and spread thence to the plaintiff’s land, causing the injury to his property. It is contended on the part of the appellant, that for such injury, the company is not liable under the Code, because it was the remote and not the proximate consequence of the defendant’s negligence. In support of this proposition, we have been referred to Ryan vs. New York Central R. R. Co., 35 N. Y., 210, and Penn. R. R. Co. vs. Kerr, 62 Pa., 353.
In those cases it was held, that “ where the fire is communicated by the locomotive to the house of A, and [142]*142thence to the house, of B, there can be no recovery by the latter,” and the decisions are based upon the ground, that the fire from the locomotive is not the proximate cause of the destruction of B’s house ; and his injury being merely the remote or indirect result of the wrongful act of the defendant, he cannot maintain an action according to the maxim “ causa próxima non remota spectatur.” There is no rule of the law better established or more universally recognized. Whether it was correctly applied in the cases above cited, it is not material for us now to consider; because it is obvious that the facts of the present case clearly distinguish it from those.
It may be proper to observe, that the decisions, in 15 N. York and 62 Pa., are not supported by any English case that we have seen, and are in conflict with several decisions both in England and in this country, which have been cited in argument by the appellee. Among them, we may refer to Piggot vs. Eastern Counties R. Co., 54 E. C. L., 229; Smith vs. L. & S. R. Co., 5 L. R. C. P., 98; Perley vs. Eastern R. R. Co., 98 Mass., 418; Hart vs. Western R. R. Co., 13 Metc., 99; Gifferd Feut, et al. vs. The Toledo, Peoria and Warsaw Railway Co.
The last mentioned case was decided by the Supreme Court of Illinois in 1872, and is reported in the Albany Law Journal for 28th of September, 1872, (vol. 6, p. 226.) In the opinion delivered by C. J. Lawrence, the authorities are reviewed and the whole subject discussed with much ability. Without attempting to reconcile the various decisions, which would be a fruitless and unprofitable task, or undertaking to define for all possible cases the exact limits and extent of the liability of railroad companies under our Code, for damages by fire occasioned by their engines and carriages, we may safely state the rule to be, that when their liability arises it extends to "all the near and natural consequences of their wrongful act, and not to those which are remote, [143]*143incidental or exceptional.” Law Reg , Sep. No., 1873, page 560, (Judge Redeield’s note.) The rule is thus stated by Judge Parsons : “The defendant is held liable
for all those consequences which might have been foreseen and expected as the results of his conduct, but not for those which he could not have foreseen, and was therefore under no moral obligation to take into consideration, (2 Parsons on Contracts, 456.) The rule was laid down substantially in the same terms by Pollock, C. B., in Rigby vs. Hewitt, 5 Exc., 240. Other definitions might be cited from Judges and text writers; but this would serve no useful purpose. The rule is one which from its nature, and the class of cases where it applies, is incapable of precise definition. It has been correctly-said by Miller, J., speaking for the Supreme Court, “If we could deduce from the cases the best possible expression of the rule, it would remain after all, to decide each case largely upon the special facts belonging to it, and often upon the very nicest discriminations.” He adds “ one of the most valuable criteria furnished us 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 misfortune, the other must be considered as too remote.” Ins. Co. vs. Tweed, 7 Wal., 52. To apply this criterion to the case before us, it seems too plain for argument that, according to the facts contained in the first and second bills of exception, the injury to the plaintiff’s property was the direct consequence of the fire occasioned by the defendant’s locomotives. The fact that the fire began upon the side of the railroad and spread to the plaintiff’s land, cannot in any just sense be said to render the injury suffered by him of a nature merely remote and incidental within the meaning of the rule. The fire consumed his property in its natural and direct course, without any [144]*144“intervening force or power to stand as the cause of the misfortune,” and the injury suffered was therefore its proximate effect.
No case has been cited which sustains the defence here made by the appellant. In Woodruff's Case, 4 Md., 242, the fire happened in the same way, and neither Court nor counsel thought of applying the rule of causa remota. So in B. & O. R. R. Co. vs. Dorsey, 37 Md., 19, the fire originated in the same way, and it was not pretended that the injury to the plaintiff was not a proximate consequence of the defendant’s negligence. The language of the Court, (page 24,) would seem conclusive of the question as it is here presented.
We may refer also to Field vs. The N. Y. C. R., 32 N. Y., 339, where the question was ruled in the same way, by the same Court which subsequently decided Ryan vs. N. Y. C. R. Co., 35 N. Y., 210.
We conclude, therefore, that there was no error in the Circuit Court’s granting the first prayer of the plaintiff as modified, and in refusing the seventh prayer of the defendant.
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 beginning, and thus been communicated indirectly to the plaintiff’s property; it is a question proper to be submitted to the jury to determine, from all the facts of the case, whether the injury complained of is the natural consequence of the defendant’s negligence, or whether it has been caused by “some intervening force or power, which stands naturally as the cause of the misfortune;” and we do not understand that in this case the Circuit Court, by its action on the prayers, took this question from the jury.
The objection made in this Court to the plaintiff’s fourth prayer, which was granted, “that there was no [145]*145evidence of the facts therein stated,” not having been made below, cannot under our rules be entertained here. But even if it had been distinctly made at the trial, it could not prevail, as the bills of exceptions contain ample evidence to justify the granting of the prayer.
(Decided 17th December, 1873.)
Having disposed of all the questions presented by the appeal, and finding no error in the rulings of the Circuit Court, the judgment will be affirmed.
Judgment affirmed.