Heisel, J.
(delivering the opinion of the court). This case was tried befo jé a jury in the Superior Court in New Castle county and a verdict rendered in favor of the plaintiffs below, upon which judgment was entered, and the case is in this court on a writ of error.
The counts of the declaration, not abandoned at the trial, charge that the barn and contents of. the plaintiffs below were destroyed by a conflagration caused by sparks or fire emitted from a locomotive or locomotives of the defendant below by reason of either (a) the negligent operation of a locomotive, or (b) the negligent failure to equip its locomotives with appliances to prevent the escape of fire and sparks from their smokestacks, or (c) the negligent failure to equip its locomotives with appliances to prevent the escape of fire from their ash pans and fire boxes.
The facts that were proved below and are pertinent here may be thus stated:
About 8 o’clock on the evening of October 9, 1918, a barn owned by the plaintiffs below, located near Guyencourt station in Christiana Hundred, along the right of way of the defendant below, was found to be on fire, the result of which fire was the total destruction of the barn and its contents. No one actually saw the barn set on fire, and hence there was no direct testimony to .show the cause of the fire, the testimony on behalf of the plaintiffs below for the purpose being circumstantial.
About 4.30 on the afternoon of the day of the fire a colored [423]*423man named Walter Washington had been in the barn getting ready to milk and after he finished milking he put the milk away and let the cows out and then went to the house where he lived, which was three or four minutes’ walk from the barn. At that time no lights of any kind were being used, the work being done by daylight. There were no electric lights or lamps used in the barn, and no lights had been used there for months, it being summer and the work being finished by daylight. Between 6 o’clock and the time of the fire two trains on the railroad of the plaintiff in error passed by the barn, one a little after 6, and another one about 8 o’clock. The fire was discovered about 8 o’clock or shortly thereafter, about 15 minutes after the second train above mentioned had passed. The barn in question was located about 150 feet from the defendant’s right of way. There had been other fires, on other occasions, on the farm on which the barn was located, no cause for which could be assigned, except that they were caused by sparks or fire from locomotives passing along the railroad of the defendant below. One such fire was discovered within 5 to 6 feet of the said barn. The locomotives running on the said railroad had emitted a great many sparks on numerous other occasions. One of the locomotives of the defendant below, accustomed to run past the said barn at the time of the fire, was not equipped with a spark arrester at that time. Witnesses for the defendant below testified that a certain train, described as “special 1044” or “extra 1044,” passed the barn in question, going toward Wilmington, about eight o’clock on the evening of the fire; that the engine drawing this train was equipped with an improved spark arrester, which had been examined before the trip began and after the trip ended, and was found to be in good order; and that the engine was carefully operated.
At the time of the fire the wind was blowing from the direction of the railroad track toward the said barn.
The railroad track, as it approaches the location of the barn going toward Wilmington, is both curved and an ascending grade.
A witness for plaintiffs below testified he lived on the farm on which the said barn was located during the year preceding that [424]*424in which the fire occurred and had experienced a number of fires on the farm which had happened “right after the train passed.”
“Extra 1044” was a freight train consisting of a locomotive and 16 to 18 cars. The load of the train was about 1,200 tons.
Macklin, an experienced locomotive engineer, testifying for plaintiffs, said a heavy train using a great deal of coal would cause red-hot cinders to accumulate in the “front end’ ’ of the locomotive, and this would cause more sparks to get through the spark arrester and go out the stack. Such accumulation should be cleaned out during the run of the train. He also testified that grades, curves, the method in which the fire is ténded by the fireman, and the slipping of the engine all tend to cause the locomotive to throw out sparks.
Bampton, the engineer of “extra 1044,” testifying for the defendant below, said that sand is used on the track to prevent the locomotive from slipping. He also said that just before he got to the Ramsey farm he was putting sand on the track and when near the said barn he was out on top of his locomotive at the sand dome fixing it so that the sand would ran down on the track. He stated, nevertheless, that the engine was not slipping.
There are 21 assignments of error; the twelfth and twenty-first are not relied on.
The first assignment of error is the refusal of the court below to direct a verdict in favor of the defendant below at the close of all the testimony in accordance with the defendant’s first prayer.
The basis of this contention is, first, that the plaintiff below failed to show that the fire was caused by sparks from defendant’s locomotive, and, second, that there was no evidence of negligent construction or negligent operation of such locomotive.
It was shown by the testimony of the witnesses for plaintiff below that the barn was located about 150 feet from defendant’s right of way, that about 2 hours before the fire was discovered a train had passed along defendant’s right of way, and shortly before the fire was discovered (about 15 minutes) another train had passed along defendant’s right of way; that the engines on the right of way habitually emitted a great many sparks; that [425]*425fires had frequently been discovered in the fields along the right of way in the vicinity of the barn shortly after trains had passed; that a fire was once discovered within 5 or 6 feet of the barn shortly after a train had passed; and that there was nothing to which the cause of the fire in question could reasonably be attributed except to sparks or fire from a locomotive passing along defendant’s right of way.
That the fire was caused by a spark from a passing locomotive may be proved by circumstantial evidence we have no doubt. Indeed, it is the usual way of proving such fact. There is in this case sufficient evidence from which the jury might find that the fire in question was caused by a spark from a locomotive on the railroad of the defendant below.
There being evidence from which the jury could have found that the fire was caused by one of defendant’s locomotives, is there further evidence in the case from which the jury could be justified in finding negligence, in either the construction, or operatian of such locomotive? Under the law in this state, as laid .down in Jefferis v. Railroad Co., 3 Roust. 447, which was closely followed by the court below in this case, it is not sufficient for the plaintiffs to prove that a spark from a locomotive of defendant set fire to the barn, but he must show by other evidence additional facts from which the jury may find negligence.
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Heisel, J.
(delivering the opinion of the court). This case was tried befo jé a jury in the Superior Court in New Castle county and a verdict rendered in favor of the plaintiffs below, upon which judgment was entered, and the case is in this court on a writ of error.
The counts of the declaration, not abandoned at the trial, charge that the barn and contents of. the plaintiffs below were destroyed by a conflagration caused by sparks or fire emitted from a locomotive or locomotives of the defendant below by reason of either (a) the negligent operation of a locomotive, or (b) the negligent failure to equip its locomotives with appliances to prevent the escape of fire and sparks from their smokestacks, or (c) the negligent failure to equip its locomotives with appliances to prevent the escape of fire from their ash pans and fire boxes.
The facts that were proved below and are pertinent here may be thus stated:
About 8 o’clock on the evening of October 9, 1918, a barn owned by the plaintiffs below, located near Guyencourt station in Christiana Hundred, along the right of way of the defendant below, was found to be on fire, the result of which fire was the total destruction of the barn and its contents. No one actually saw the barn set on fire, and hence there was no direct testimony to .show the cause of the fire, the testimony on behalf of the plaintiffs below for the purpose being circumstantial.
About 4.30 on the afternoon of the day of the fire a colored [423]*423man named Walter Washington had been in the barn getting ready to milk and after he finished milking he put the milk away and let the cows out and then went to the house where he lived, which was three or four minutes’ walk from the barn. At that time no lights of any kind were being used, the work being done by daylight. There were no electric lights or lamps used in the barn, and no lights had been used there for months, it being summer and the work being finished by daylight. Between 6 o’clock and the time of the fire two trains on the railroad of the plaintiff in error passed by the barn, one a little after 6, and another one about 8 o’clock. The fire was discovered about 8 o’clock or shortly thereafter, about 15 minutes after the second train above mentioned had passed. The barn in question was located about 150 feet from the defendant’s right of way. There had been other fires, on other occasions, on the farm on which the barn was located, no cause for which could be assigned, except that they were caused by sparks or fire from locomotives passing along the railroad of the defendant below. One such fire was discovered within 5 to 6 feet of the said barn. The locomotives running on the said railroad had emitted a great many sparks on numerous other occasions. One of the locomotives of the defendant below, accustomed to run past the said barn at the time of the fire, was not equipped with a spark arrester at that time. Witnesses for the defendant below testified that a certain train, described as “special 1044” or “extra 1044,” passed the barn in question, going toward Wilmington, about eight o’clock on the evening of the fire; that the engine drawing this train was equipped with an improved spark arrester, which had been examined before the trip began and after the trip ended, and was found to be in good order; and that the engine was carefully operated.
At the time of the fire the wind was blowing from the direction of the railroad track toward the said barn.
The railroad track, as it approaches the location of the barn going toward Wilmington, is both curved and an ascending grade.
A witness for plaintiffs below testified he lived on the farm on which the said barn was located during the year preceding that [424]*424in which the fire occurred and had experienced a number of fires on the farm which had happened “right after the train passed.”
“Extra 1044” was a freight train consisting of a locomotive and 16 to 18 cars. The load of the train was about 1,200 tons.
Macklin, an experienced locomotive engineer, testifying for plaintiffs, said a heavy train using a great deal of coal would cause red-hot cinders to accumulate in the “front end’ ’ of the locomotive, and this would cause more sparks to get through the spark arrester and go out the stack. Such accumulation should be cleaned out during the run of the train. He also testified that grades, curves, the method in which the fire is ténded by the fireman, and the slipping of the engine all tend to cause the locomotive to throw out sparks.
Bampton, the engineer of “extra 1044,” testifying for the defendant below, said that sand is used on the track to prevent the locomotive from slipping. He also said that just before he got to the Ramsey farm he was putting sand on the track and when near the said barn he was out on top of his locomotive at the sand dome fixing it so that the sand would ran down on the track. He stated, nevertheless, that the engine was not slipping.
There are 21 assignments of error; the twelfth and twenty-first are not relied on.
The first assignment of error is the refusal of the court below to direct a verdict in favor of the defendant below at the close of all the testimony in accordance with the defendant’s first prayer.
The basis of this contention is, first, that the plaintiff below failed to show that the fire was caused by sparks from defendant’s locomotive, and, second, that there was no evidence of negligent construction or negligent operation of such locomotive.
It was shown by the testimony of the witnesses for plaintiff below that the barn was located about 150 feet from defendant’s right of way, that about 2 hours before the fire was discovered a train had passed along defendant’s right of way, and shortly before the fire was discovered (about 15 minutes) another train had passed along defendant’s right of way; that the engines on the right of way habitually emitted a great many sparks; that [425]*425fires had frequently been discovered in the fields along the right of way in the vicinity of the barn shortly after trains had passed; that a fire was once discovered within 5 or 6 feet of the barn shortly after a train had passed; and that there was nothing to which the cause of the fire in question could reasonably be attributed except to sparks or fire from a locomotive passing along defendant’s right of way.
That the fire was caused by a spark from a passing locomotive may be proved by circumstantial evidence we have no doubt. Indeed, it is the usual way of proving such fact. There is in this case sufficient evidence from which the jury might find that the fire in question was caused by a spark from a locomotive on the railroad of the defendant below.
There being evidence from which the jury could have found that the fire was caused by one of defendant’s locomotives, is there further evidence in the case from which the jury could be justified in finding negligence, in either the construction, or operatian of such locomotive? Under the law in this state, as laid .down in Jefferis v. Railroad Co., 3 Roust. 447, which was closely followed by the court below in this case, it is not sufficient for the plaintiffs to prove that a spark from a locomotive of defendant set fire to the barn, but he must show by other evidence additional facts from which the jury may find negligence. The law as thus declared in the Jefferis Case is not challenged by counsel for plaintiffs below, but he contends that such additional facts were shown, which justified the court in submitting the case to the jury, and the jury in finding the defendant negligent either in the equipment or operation of one of its locomotives on the evening of the fire. It having been shown that a building was set on fire by a spark from a locomotive, the distance of such building from the railroad may be evidence of negligence in equipment, or operation.
In Huyett v. Railroad Co., 23 Pa. 373, the fire was started 73 feet from the right of way; held to be evidence of negligence. So in Louisville & N. R. Co. v. Malone, 109 Ala. 509, 20 South. 33, where the distance was 63 feet. In Railroad Co. v. Scheible, 162 Ky. 469, 172 S. W. 910, the building destroyed was from 80 to [426]*42690 feet away. In Railroad Co. v. Quaintance, 58 Ill. 389, the court said:
"It is conceded by the witness Jackman, who is doubtless a skillful and learned man in his profession, that if the engine, at the time in question, did throw fire sparks to the distance of ISO feet, of sufficient size and of life enough to ignite the house, it must necessarily have been out of repair.”
The distance of the barn in the case at bar was 150 feet from the right of way of the defendant, which is a very unusual distance for a live spark to carry, and if the jury believed it did carry that far and ignite the barn, it would be especially strong proof of defective equipment or operation or both.
Evidence of other fires, along the right of way at other times, the cause for which is not accounted for, except by sparks from passing locomotives, is admissible and is evidence of negligence, when the engine that set the fire is not identified. Railroad Co. v. Richardson, 91 U. S. 474, 23 L. Ed. 356; Northern Pacific v. Lewis, 51 Fed. 664, 2 C. C. A. 446; Gowen v. Glaser (Pa.) 10 Atl. 417; Field v. New York Central R. Co., 32 N. Y. 339; Bright Hope Ry. Co. v. Rogers, 76 Va. 443.
The identity of the engine in this case is more fully considered under assignments of error Nos. 13, 14, 15, 16, 17, and 20.
Even if the jury believed the spark that set the fire came from engine No. 1044, and further believed said engine was equipped with sufficient spark arrester, the jury may, nevertheless, consider the evidence of the manner in which the engine was being operated around the curved track, up grade, the weight of the train, and the emission of sparks on the evening of the fire as evidence of negligent operation.
We are clearly of the opinion the court was not in error in refusing to charge the jury to find a verdict in favor of the defendant, and in submitting the case to the jury for its determination upon the evidence.
Our finding on the first assignment of error would seem to dispose of the eighth assignment also; and while that assignment was fully and ably presented by counsel on both sides, we feel -nothing will be accomplished by a further examination of a question necessarily considered in deciding the first assignment.
[427]*427The second, third, fifth, sixth, seventh and ninth assignments of error allege failure of the court below to charge the jury in accordance with the several prayers mentioned in such assignments.
We are of the opinion that the substance and effect of the instructions requested by the defendant below in those prayers were given by the court below in its charge to the jury, and, while there could have been no objection to the court applying the law, charged by them, somewhat more specifically to the facts of the case on trial, we think the instructions prayed for by the defendant below were covered by the charge of the court.
The fourth assignment alleges that the court erred in refusing to instruct the jury:
“ That the defendant had an unquestioned right to operate the railroad by engines propelled by steam generated by fire.”
There was no issue in the case as to the right of the defendant to so operate the road, and, therefore, no occasion for the court to instruct the jury on the point.
The tenth assignment charges the court below erred in instructing the jury:
“Whether the alleged firing of plaintiffs’ property resulted from the alleged acts of negligence of the defendant company, or any of them, may be shown by either direct or circumstantial evidence”
— for the reason that the only circumstantial evidence in the case was evidence of other fires at other times, which evidence was inadmissible and should have been ruled out.
Aside from the admissibility of evidence of other fires, there is evidence of other circumstances from which the jury might have inferred negligence in the equipment or operation of the defendant’s engine which caused the fire.
The eleventh assignment of error is based upon the refusal of the court below to dismiss the array of jurors drawn as additional jurors from which panel a jury to try this case was drawn, for the reason that the additional jurors were drawn and summoned contrary to the statutes of this state.
It is not disclosed by the record how the additional jurors were drawn and summoned. The authority of the court to keep [428]*428in attendance the requisite number of jurors to serve the court is very broad. Section 4266, Code 1915, provides:
“If at any court a sufficient number of grand or petit jurors, drawn and summoned as aforesaid, do not appear; or if the panel returned by the sheriff be quashed by the court, the court may award a tales de circumstantibus, or make such other order as it may deem expedient for filling up the requisite number of jurors to serve at such court. In like manner a deficiency of the petit jurors may be supplied, when, by reason of challenges, or otherwise, a sufficient number are not ready for the trial of a cause.”
The thirteenth, fourteenth, fifteenth, sixteenth, seventeenth and twentieth assignments of error go to the admission of testimony of witnesses of plaintiff below as to other fires caused by engines of the defendant below at other time's in the vicinity of the barn in question.
There seems to be a marked uniformity in the decisions of the courts relating to the admission of such evidence. The rule is that testimony of other fires is admissible when the identity of the engine which set out the fire is a disputed question for the jury to determine and is not admissible when the identity of the engine is admitted, or is so conclusively proven, as no longer to be a disputed fact for the jury.
The cases cited by counsel for plaintiff in error in his argument on this branch of the case, as well as many others, fully support this rule.
If the fire that destroyed the barn in the case at bar was caused by an engine of the defendant, was the identity of such engine a disputed question of fact to be determined by the jury? The defendant below did not admit that the fire was started by a spark from its engine No. 1044, but contended that, if it was started from any engine, it must have been from No. 1044.
The testimony on this point showed that the fire occurred about 8 o’clock in the evening; that a little after 6 o’clock one train passed, and about 8 o’clock another train passed; and shortly thereafter, probably about 15 minutes, the fire was discovered. It is not disclosed by the evidence whether or not any other engine passed that point within a time when it would be reasonable to infer that the fire could have started from a spark from it.
[429]*429A careful consideration of the evidence satisfies us that the origin of the fire was a disputed fact to be determined by the jury, and that, in determining that fact, there was evidence from which it might find the fire to have been started from some engine of the defendant below, other than engine No. 1044. The court below, therefore, did not err in admitting evidence of other fires.
The eighteenth and nineteenth assignments of error are based upon the admission of, and -the refusal to strike out, the testimony of Henry Anderson, a witness for the plaintiffs below.
Anderson testified that about a year and five months after the fire he was at the site of the burned barn and—
“noted that the greater part of the site of the bam was covered with freshly fallen snow. The surface was white, with the exception of cinders, which were lying oh the top of the snow. * * * There were more cinders near the railroad track than there were upon the site or between the site of the bam and the track; that is, they increased as you got nearer to the railroad track.”
Witness stated the size of the cinders to be an eighth of an inch or larger; that he found cinders as much as twenty feet beyond the barn site, away from the railroad, making a total of approximately 200 feet from the railroad track to the last cinders found there in any appreciable quantity; that witness could conceive of no other means around there where these cinders might have come from except from the railroad track; that the cinders were on the top of the snow, and had apparently fallen there.
Counsel for plaintiff in error contends that this testimony is irrelevant, immaterial and inadmissible; that it is of no probative value whatever, and any deductions from it could only influence the minds of the jury to the prejudice of the defendant.
Defendant in error argues that Anderson’s testimony was harmless from any viewpoint, but may be considered as admissible upon the same theory that testimony of “other fires” at other times, in the case of an unidentified locomotive is admitted.
The broadest inference that can be drawn from Anderson’s testimony is that cinders might be carried from a locomotive on defendant’s railroad to -the site of the barn and 20 feet beyond. There is nothing in his testimony or in the testimony of any other [430]*430witness to show whether the cinders were alive or dead when deposited upon the snow, or what the wind and other conditions were at the time the cinders were deposited upon the snow. We think the evidence is without probative force, and was not admissible on the theory that evidence of “other fires” is admissible, and should have been excluded by the court below. And while we have been in some doubt as to the effect of its admission, after a careful consideration of all the evidence in the case, we are of the opinion that the judgment should not for that reason be reversed.
The judgment below is affirmed.
Judge Rice dissenting.