Powers, J.
This is an action at common law, brought for the benefit of the Liverpool, London and Globe Insurance Company, to recover the amount of insurance paid by it to the plaintiff upon his buildings in Freeport, alleged to have been destroyed by fire communicated by sparks escaping from the locomotive engine of the defendant through its negligence in the construction, equipment, management, and operation of the same. The defendant has already paid to the plaintiff the full amount foi’ which it is liable under B,. S. 1883, c. 51, § 64, as amended by c. 79 of the laws of 1895, and insists that it is under no further liability. That statute is as follows: “When a building or other property is injured by fire communicated by a locomotive engine, the corporation using it is responsible for such injury, and it has an insurable interest in the property along the route, for which it is responsible, and may procure insurance thereon. But such corporation shall be entitled to the benefit of any insurance upon such property effected by the owner thereof [199]*199less the premium and expense of recovery. The insurance shall be deducted from the damages, if recovered before the damages are assessed, or, if not, the policy shall be assigned to such corporation, which may maintain an action thereon, or prosecute, at its own expense, any action already commenced by the insured, in either case with all the rights which the insured originally had.”
Independently of any statute and prior to the enactment of c. 9, § 5, of the laws of 1842, the owner of property had the right at common law to recover damages sustained by fire communicated from a. locomotive engine through the negligence of the railroad company using it. The act of 1842, which continued unchanged until 1895, broadened the liability of a railroad company so that it was made to embrace all cases of fire communicated from its locomotive engine. It was no longer necessary to allege and prove negligence in the use of the engine, and the statute in effect made the railroad company an insurer. If the property damaged was insured, the insurance company was entitled to subrogation. In such case, the owner might collect of either party that he saw fit. If from the insurance company first, then that fact constituted no defence for the railroad company, and any sum collected by him, in excess of what was necessary with the insurance to compensate him for bis full loss, he held in trust for the insurance company. If, on the other hand, he collected from the railroad first, he thereby diminished to the same extent his claim against the insurance company. Both were insurers, the insurance company by virtue of its voluntary contract, and the) railroad company by force of the statute which imposed the liability upon it. The liability of the railroad company was however primary and that of the insurance company secondary, not in point of time, but in point of ultimate liability. Hart et al. v. Western R. R., 13 Metcalf, 99.
In this state of the law the statute was amended by c. 79, of the laws of 1895, giving to the railroad the benefit of any insurance upon the property, and providing that the insurance should be deducted from the damages if recovered before they were assessed, or if not, that the policy should be assigned to the railroad corporation which might then maintain an action thereon with all the rights of the [200]*200insured. This amendment had special and particular reference to the adjustment of the liability of the two insurers, the insurance company and the railroad company, in those cases falling under the section which was amended, and in which it was necessary for the owner to invoke the statutory liability of the defendant corporation in order to recover against it. The legislature might well deem it just that, as between the voluntary insurer by contract and the one who without fault on its part is made such by law, the latter should have the preference. To go further and say that in a case where the railroad company is liable because of its own fault and negligence, and not as an insurer, it should have the benefit of any insurance effected by the owner upon such .property, would be a manifest injustice. The consequence of the defendant’s negligence would then fall not upon itself but upon the insurance company, not upon the guilty but upon the innocent. We can not believe that a result so repugnant to justice could have been within the legislative intention. This action, therefore, may be maintained notwithstanding the amendment of 1895. That act is limited in its application to those cases in which the section amended makes the railroad company an insurer, in other words, to those cases in which the liability of the defendant is created by that section and not by its own negligent act.
The result here reached, is not in conflict with Leavitt v. C. P. Ry. Company, 90 Maine, 153. In that case it was admitted that fire was communicated without fault or negligence on the part of the defendant, thus clearly presenting a state of facts under which the railroad was chargeable, not at common law, but solely because of its statutory liability. We are aware, also that the right of subrogation was denied to the insurance company under a similar statute in Lyons v. Boston & Lowell R. R., 181 Mass. 551; but that, like Leavitt v. C. P. Ry., supra, appears tb have been an action based upon the statutory liability of the defendant and the questions here decided were not raised or considered.
This case comes before the court upon report and the defendant contends it is not liable upon the facts. The undisputed facts are that on the date in question the defendant’s locomotive engine, sending out an unusual amount of smoke and cinders, passed over its [201]*201roád through the plaintiff’s farm and about three hundi’ed feet from his buildings. There was no fire seen before the train passed but it was discovered shortly after in the grass near the railroad track, extending from the banks of the railroad to the plaintiff’s buildings which it consumed. No attempt is made to account for the fire at this time or place upon any other hypothesis, and we think it is a fair inference that the fire was communicated by sparks from the defendant’s locomotive. Gibbons v. Wis. Valley R. Co., 66 Wis. 161; C. & A. R. R. Co. v. Esters, 178 Ill. 192; Smith v. London & S. W. Ry. Co., 5 C. P. 98, 13 Am. & Eng. Ency. Law, 2 ed. 513.
The plaintiff must still prove that the defendant’s negligence was the cause of the fire, and there is no evidence of any negligence on the defendant’s part unless negligence in the construction, equipment or management of its locomotive engine can be inferred from the fact that the fire was communicated by sparks from it. On the question whether that fact alone is sufficient to make out a prima facie case of such negligence there appears to be an irreconcilable conflict of authority. The most respectable courts after careful consideration have arrived at directly contrary conclusions. On the one hand it has been held that no such presumption arises, because first, the defendant is carrying on a lawful business in a lawful manner, and second, that sparks and coals may escape notwithstanding all the safeguards have been adopted which modern science can suggest, and the greatest skill and care are employed in the operation of the engine.
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Powers, J.
This is an action at common law, brought for the benefit of the Liverpool, London and Globe Insurance Company, to recover the amount of insurance paid by it to the plaintiff upon his buildings in Freeport, alleged to have been destroyed by fire communicated by sparks escaping from the locomotive engine of the defendant through its negligence in the construction, equipment, management, and operation of the same. The defendant has already paid to the plaintiff the full amount foi’ which it is liable under B,. S. 1883, c. 51, § 64, as amended by c. 79 of the laws of 1895, and insists that it is under no further liability. That statute is as follows: “When a building or other property is injured by fire communicated by a locomotive engine, the corporation using it is responsible for such injury, and it has an insurable interest in the property along the route, for which it is responsible, and may procure insurance thereon. But such corporation shall be entitled to the benefit of any insurance upon such property effected by the owner thereof [199]*199less the premium and expense of recovery. The insurance shall be deducted from the damages, if recovered before the damages are assessed, or, if not, the policy shall be assigned to such corporation, which may maintain an action thereon, or prosecute, at its own expense, any action already commenced by the insured, in either case with all the rights which the insured originally had.”
Independently of any statute and prior to the enactment of c. 9, § 5, of the laws of 1842, the owner of property had the right at common law to recover damages sustained by fire communicated from a. locomotive engine through the negligence of the railroad company using it. The act of 1842, which continued unchanged until 1895, broadened the liability of a railroad company so that it was made to embrace all cases of fire communicated from its locomotive engine. It was no longer necessary to allege and prove negligence in the use of the engine, and the statute in effect made the railroad company an insurer. If the property damaged was insured, the insurance company was entitled to subrogation. In such case, the owner might collect of either party that he saw fit. If from the insurance company first, then that fact constituted no defence for the railroad company, and any sum collected by him, in excess of what was necessary with the insurance to compensate him for bis full loss, he held in trust for the insurance company. If, on the other hand, he collected from the railroad first, he thereby diminished to the same extent his claim against the insurance company. Both were insurers, the insurance company by virtue of its voluntary contract, and the) railroad company by force of the statute which imposed the liability upon it. The liability of the railroad company was however primary and that of the insurance company secondary, not in point of time, but in point of ultimate liability. Hart et al. v. Western R. R., 13 Metcalf, 99.
In this state of the law the statute was amended by c. 79, of the laws of 1895, giving to the railroad the benefit of any insurance upon the property, and providing that the insurance should be deducted from the damages if recovered before they were assessed, or if not, that the policy should be assigned to the railroad corporation which might then maintain an action thereon with all the rights of the [200]*200insured. This amendment had special and particular reference to the adjustment of the liability of the two insurers, the insurance company and the railroad company, in those cases falling under the section which was amended, and in which it was necessary for the owner to invoke the statutory liability of the defendant corporation in order to recover against it. The legislature might well deem it just that, as between the voluntary insurer by contract and the one who without fault on its part is made such by law, the latter should have the preference. To go further and say that in a case where the railroad company is liable because of its own fault and negligence, and not as an insurer, it should have the benefit of any insurance effected by the owner upon such .property, would be a manifest injustice. The consequence of the defendant’s negligence would then fall not upon itself but upon the insurance company, not upon the guilty but upon the innocent. We can not believe that a result so repugnant to justice could have been within the legislative intention. This action, therefore, may be maintained notwithstanding the amendment of 1895. That act is limited in its application to those cases in which the section amended makes the railroad company an insurer, in other words, to those cases in which the liability of the defendant is created by that section and not by its own negligent act.
The result here reached, is not in conflict with Leavitt v. C. P. Ry. Company, 90 Maine, 153. In that case it was admitted that fire was communicated without fault or negligence on the part of the defendant, thus clearly presenting a state of facts under which the railroad was chargeable, not at common law, but solely because of its statutory liability. We are aware, also that the right of subrogation was denied to the insurance company under a similar statute in Lyons v. Boston & Lowell R. R., 181 Mass. 551; but that, like Leavitt v. C. P. Ry., supra, appears tb have been an action based upon the statutory liability of the defendant and the questions here decided were not raised or considered.
This case comes before the court upon report and the defendant contends it is not liable upon the facts. The undisputed facts are that on the date in question the defendant’s locomotive engine, sending out an unusual amount of smoke and cinders, passed over its [201]*201roád through the plaintiff’s farm and about three hundi’ed feet from his buildings. There was no fire seen before the train passed but it was discovered shortly after in the grass near the railroad track, extending from the banks of the railroad to the plaintiff’s buildings which it consumed. No attempt is made to account for the fire at this time or place upon any other hypothesis, and we think it is a fair inference that the fire was communicated by sparks from the defendant’s locomotive. Gibbons v. Wis. Valley R. Co., 66 Wis. 161; C. & A. R. R. Co. v. Esters, 178 Ill. 192; Smith v. London & S. W. Ry. Co., 5 C. P. 98, 13 Am. & Eng. Ency. Law, 2 ed. 513.
The plaintiff must still prove that the defendant’s negligence was the cause of the fire, and there is no evidence of any negligence on the defendant’s part unless negligence in the construction, equipment or management of its locomotive engine can be inferred from the fact that the fire was communicated by sparks from it. On the question whether that fact alone is sufficient to make out a prima facie case of such negligence there appears to be an irreconcilable conflict of authority. The most respectable courts after careful consideration have arrived at directly contrary conclusions. On the one hand it has been held that no such presumption arises, because first, the defendant is carrying on a lawful business in a lawful manner, and second, that sparks and coals may escape notwithstanding all the safeguards have been adopted which modern science can suggest, and the greatest skill and care are employed in the operation of the engine. On the other hand we may well presume that the defendant is not running locomotives over its road the natural and probable effect of which would be to communicate fire to the property along its route if the locomotives were properly equipped and carefully managed, and when fire is so communicated the natural presumption is that it is due to negligence. More than that, such a presumption has its foundation in the necessities of the case. The locomotives of railroad companies by night and day rush with great velocity through the land. They are here today and tomorrow may be hundreds of miles away. They are within the control of the defendant. The method of their equipment and manner of their operation are known [202]*202to its employees who are always present with the engine, and evidence touching this subject is easy of pi’oduction on its part. The owner of the property destx-oyed has no such opportunities of knowledge. It may be ofteix exceedingly difficult if not impossible for him to even idexxtify the engine which has caused the injux’y, or to obtain the names of those who know about its equipment or its use. He is frequently absent, and if present at the tinxe and place of the fire he can obtain but a momentary view of the locomotive. He has no opportunity for inspection and knows nothing of its equipment and management. He can judge only by the result, and can often obtain no other proof as to whether the injury which he suifei’s has been caused by negligence. It is similar to those cases in which the burden of proof is cast upon him who best knows the facts. In this state the question is a new one. We are at liberty to adopt that rule which seems to us most consonant with reason and justice, and we think that negligence in the construction, equipment or managexnent of the defendant's locomotive engine may fairly be inferred from the fact that the fire was communicated by spax’ks fx’om it, and that there being no evidence or circumstances to rebut that inference, it is sufficient to enable the plaintiff to make out a pxfima facie case of negligence axid maintain this action. This view is amply supported by the following among many authorities: Chicago B. & Q. R. R. v. Beal, 94 N. W. 956, 14 Am. Neg. R. 133; Illinois Central R. R. Co. v. Mills, 42 Ill. 407; Spaulding v. Chicago & Northwestern R. Co., 30 Wis. 110, 11 Am. Rep. 550; Idem v. Idem, 33 Wis. 83; Gulf Ry. Co. v. Benson, 69 Tex. 497, 5 Am. St. Rep. 74; Clemens v. Hannibal & St. Jo. R. R. Co., 53 Mo. 366, 14 Am. Rep. 460; Barker v. Louisville & Nashville R. R., 7 Heisk. 451, 19 Am. Rep. 618; Hull v. Sacramento Valley R. R. Co., 14 Cal. 387; Louisville & C. R. R. Co. v. Marbury Lumber Co., 132 Ala. 520, 90 Am. St. Rep. 917; Idem v. Reese, 85 Ala. 497, 7 Am. St. Rep. 66. “In the case of railroad engines it has been repeatedly decided that the fact that the fire had been communicated by them to the pi-emises is sufficient to raise a px’esumption that the railroad was not employing the best known contrivances to retain the fire and to make out a prima facie case of negligence.'' Cooley on Torts, 2 ed. 702. In [203]*203the closely analogous case of Dunning v. M. C. R. R. Co., 91 Maine, 87, this court felt the necessity of applying to locomotives a somewhat more liberal rule of evidence than is applied in other cases.
Lowney v. N. B. R. R. Co., 78 Maine, 479, is not an authority to the contrary. That the case differed from the present in two all important particulars; first, there does not appear to have been'any sufficient proof that the fire was in fact communicated by the defendant’s locomotive engine, and second, the defendant introduced evidence tending to show that there was no negligence in either the equipment or operation of the locomotive. After stating that it might be doubted whether there was sufficient proof that the fire was communicated by the locomotive the court say: aThe neglience must be proved. Its relation as the efficient cause of the fire must also be proved. In this case we find no evidence of such negligence, nor of its casual relation. It is urged in the argument for the plaintiff that the dampers were probably open, or warped, or that ignited coals may have been blown out of the ash pan, or that the smoke stack might not have had proper appliances to arrest sparks. We do not find the evidence of them however. Indeed what evidence there was upon these points seems to negative the plaintiff’s suggestions.” If there was no sufficient proof that the fire was communicated by the defendant’s locomotive, the question of negligence could not arise. If there was such proof then the evidence negatived the claim of the defendant’s negligence. The question whether when the fire is in fact communicated by the locomotive and there is no evidence as to its manner of construction, equipment and operation, negligence in one of those particulars may fairly be inferred from the escape of the sparks in such quantity and manner as to cause the fire, was not before the court in that case.
The value of the property destroyed was $2800 and the defendant has paid to the plaintiff $1120.
Judgment for plaintiff for $1680 and interest from the date of writ.