The opinion of the court was delivered by
Kingman, C. J.:
The plaintiff below brought his action to recover damages alleged to have been sustained by the burning of a corn-crib, some corn, a corral, and other property of his, by fire averred to have been carelessly communicated from a passing locomotive engine of the defendant. The answer was a general denial. The case was submitted to the court, without a jury, upon an agreed statement of facts, of which the following is a copy:
“ At the time of the happening of the alleged grievances complained of, the defendant was a railway corporation existing by law authorized to operate a railway over the line described in the petition, and to haul thereon at all times trains of cars drawn by locomotives propelled by steam generated by fire; that at the time and place mentioned in the petition, about five or six miles west of Junction City station, a locomotive engine of the defendant passed westward drawing a train of cars and run in the usual manner on a regular trip in the defendant’s lawful business ; that a high wind was blowing at the time; that by this means quantities of live coals and embers were blown from the ash-pan of said engine into [315]*315dry grass and weeds standing upon the right of way, and scattered along and lying in the ditch beside the track of the railway of the defendant, whereby the same were ignited in several places within the distance of one-half ’ mile; that such fire so kindled, and driven by said wind ran rapidly to dry grass and weeds standing on the premises of the plaintiff immediately adjacent^ and spreading on said premises produced the damages complained of; that said engine was provided with all the most approved appliances in use for preventing injuries • by the escape and communication of fire therefrom to ' property or combustible material upon or adjacent to the-line of the railway, including an appliance for conducting water to the ash-pan, and was in good order and was-operated by competent and careful servants of the defendant; that from engines of the same make, and properly constructed and operated, burning coals and embers are sometimes blown by a high wind; and that the plaintiff' suffered injury from the destruction of his property by said fire to the amount of five hundred dollars.”
i. Negligence, ten on™?3 From this agreed statement of facts the court found- “ that the defendant negligently'destroyed the property of the plaintiff as set forth in the petition,” and assessed-his damages accordingly. The sole question below, and> in this court, is a question of law, and that is,'whether, on the agreed facts, the law attaches negligence to the-defendant. And here it may be proper to correct an error into which the defendant in error has-fallen for want of proper consideration of the question. He contends that only so much of the fore- ■ going facts are to be considered as tend to support the - plaintiff’s petition; that the defendant could not under • his general denial give in evidence any of the facts that show a want of negligence. It need not be determined-whether such evidence was admissible under the pleadings, because there was no exception, and all the agreed facts went to make up the evidence in the ease. It is too late to object to any part of it in this court as irrelevant.. [316]*316Again, remarks made in other cases that this court will not weigh evidence and reverse judgments because the preponderance seems to us to be against the verdict, because we have not the same opportunities to observe the bearing of witnesses, and scrutinize the manner of giving their testimony as have the jury, have no application to - this case. Here the facts are agreed, not controverted. 'They are not testimony to be weighed, but facts to be considered; and this court can do that as well as the court below. It may be true that when in great doubt, in such a case, this court will give proper weight to the Judgment of the court below; but it certainly will not allow that judgment to control the positive opinions they may form. These remarks are made in answer to a large part of the argument of the defendant in error, and to remove any doubt if any were really entertained as to the exact status of such a case in this court.
2. Negligence; questions oías iaot' The point to be decided then is, whether the law attaches negligence to the plaintiff in error on the facts of this case. “ So use your own, as not to injure another’s,” has become a maxim in our laws, and is ap- ^ plied to regulate the conduct of individuals as to the use of their property, and is enforced by giving compensation for injuries wrongfully occasioned by a violation of the principle which the maxim involves. The difficulty lies in giving proper application to the principle rather than in any uncertainty in the principle itself. It is true, that it is prima facie competent for any one. to enjoy and use his property as he chooses ; but he must however so enjoy and use it as not to affect injuriously the right of others. These are general truths; but when clearly establishe ’ rights are such as, if exercised, injury may result to others, then it must be considered whether or not their exercise be not restrained [317]*317by the existence of some duty imposed. It does not always or necessarily follow that, because a party receives-disadvantage from the exercise of a right by another,, therefore an action lies. . In the case before us we see a railway company, with the conceded right to operate a railway, using engines propelled by steam generated by fire in so doing. There was also an adjoining proprietor with the right to his property, and to enjoy it unmolested and undisturbed. A part of this property has been destroyed, and the immediate cause is the operating of the railway company’s road. There is a loss. The road is the cause. The inquiry arises, by whose fault? The burden of proof is on the complaining party; the party whose property has been destroyed. Of this there is no-question. The English courts have held that proof that the fire was communicated from the engine of the company is sufficient prima fade .proof to throw upon the defendant the burden of showing that there was no want of skill, care, or diligence in the construction or management of the engines : Piggot v. The Eastern Counties Railway Co., 54 Eng. Com. Law Rep., 228. In this country the courts have with great unanimity, where the matter has not been regulated by statute, held that the mere-fact that a fire is caused by a locomotive engine does not raise the presumption of negligence. In this case, we-need not, and do not propose, to decide which is the better rule. The evidence is the agreed facts; and they show that the company had supplied its engine with all the most approved appliances in use for preventing injuries by the escape and communication of fire therefrom to property or combustible material upon or adjacent to-the line of the railway, which was in good order, and-was operated by competent and careful servants of the defendant. It also appears as a fact, that from engines-[318]*318•of the same make and properly constructed and operated, burning coals and embers are sometimes blown by a high wind. It thus appears that no care or precaution that science or skill could provide was omitted in the construction of the engine to guard against such accidents as the one that occasioned the loss in this case; and any ■possible want of care or diligence on the part of the employes, as to this matter, is negatived by the facts.
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The opinion of the court was delivered by
Kingman, C. J.:
The plaintiff below brought his action to recover damages alleged to have been sustained by the burning of a corn-crib, some corn, a corral, and other property of his, by fire averred to have been carelessly communicated from a passing locomotive engine of the defendant. The answer was a general denial. The case was submitted to the court, without a jury, upon an agreed statement of facts, of which the following is a copy:
“ At the time of the happening of the alleged grievances complained of, the defendant was a railway corporation existing by law authorized to operate a railway over the line described in the petition, and to haul thereon at all times trains of cars drawn by locomotives propelled by steam generated by fire; that at the time and place mentioned in the petition, about five or six miles west of Junction City station, a locomotive engine of the defendant passed westward drawing a train of cars and run in the usual manner on a regular trip in the defendant’s lawful business ; that a high wind was blowing at the time; that by this means quantities of live coals and embers were blown from the ash-pan of said engine into [315]*315dry grass and weeds standing upon the right of way, and scattered along and lying in the ditch beside the track of the railway of the defendant, whereby the same were ignited in several places within the distance of one-half ’ mile; that such fire so kindled, and driven by said wind ran rapidly to dry grass and weeds standing on the premises of the plaintiff immediately adjacent^ and spreading on said premises produced the damages complained of; that said engine was provided with all the most approved appliances in use for preventing injuries • by the escape and communication of fire therefrom to ' property or combustible material upon or adjacent to the-line of the railway, including an appliance for conducting water to the ash-pan, and was in good order and was-operated by competent and careful servants of the defendant; that from engines of the same make, and properly constructed and operated, burning coals and embers are sometimes blown by a high wind; and that the plaintiff' suffered injury from the destruction of his property by said fire to the amount of five hundred dollars.”
i. Negligence, ten on™?3 From this agreed statement of facts the court found- “ that the defendant negligently'destroyed the property of the plaintiff as set forth in the petition,” and assessed-his damages accordingly. The sole question below, and> in this court, is a question of law, and that is,'whether, on the agreed facts, the law attaches negligence to the-defendant. And here it may be proper to correct an error into which the defendant in error has-fallen for want of proper consideration of the question. He contends that only so much of the fore- ■ going facts are to be considered as tend to support the - plaintiff’s petition; that the defendant could not under • his general denial give in evidence any of the facts that show a want of negligence. It need not be determined-whether such evidence was admissible under the pleadings, because there was no exception, and all the agreed facts went to make up the evidence in the ease. It is too late to object to any part of it in this court as irrelevant.. [316]*316Again, remarks made in other cases that this court will not weigh evidence and reverse judgments because the preponderance seems to us to be against the verdict, because we have not the same opportunities to observe the bearing of witnesses, and scrutinize the manner of giving their testimony as have the jury, have no application to - this case. Here the facts are agreed, not controverted. 'They are not testimony to be weighed, but facts to be considered; and this court can do that as well as the court below. It may be true that when in great doubt, in such a case, this court will give proper weight to the Judgment of the court below; but it certainly will not allow that judgment to control the positive opinions they may form. These remarks are made in answer to a large part of the argument of the defendant in error, and to remove any doubt if any were really entertained as to the exact status of such a case in this court.
2. Negligence; questions oías iaot' The point to be decided then is, whether the law attaches negligence to the plaintiff in error on the facts of this case. “ So use your own, as not to injure another’s,” has become a maxim in our laws, and is ap- ^ plied to regulate the conduct of individuals as to the use of their property, and is enforced by giving compensation for injuries wrongfully occasioned by a violation of the principle which the maxim involves. The difficulty lies in giving proper application to the principle rather than in any uncertainty in the principle itself. It is true, that it is prima facie competent for any one. to enjoy and use his property as he chooses ; but he must however so enjoy and use it as not to affect injuriously the right of others. These are general truths; but when clearly establishe ’ rights are such as, if exercised, injury may result to others, then it must be considered whether or not their exercise be not restrained [317]*317by the existence of some duty imposed. It does not always or necessarily follow that, because a party receives-disadvantage from the exercise of a right by another,, therefore an action lies. . In the case before us we see a railway company, with the conceded right to operate a railway, using engines propelled by steam generated by fire in so doing. There was also an adjoining proprietor with the right to his property, and to enjoy it unmolested and undisturbed. A part of this property has been destroyed, and the immediate cause is the operating of the railway company’s road. There is a loss. The road is the cause. The inquiry arises, by whose fault? The burden of proof is on the complaining party; the party whose property has been destroyed. Of this there is no-question. The English courts have held that proof that the fire was communicated from the engine of the company is sufficient prima fade .proof to throw upon the defendant the burden of showing that there was no want of skill, care, or diligence in the construction or management of the engines : Piggot v. The Eastern Counties Railway Co., 54 Eng. Com. Law Rep., 228. In this country the courts have with great unanimity, where the matter has not been regulated by statute, held that the mere-fact that a fire is caused by a locomotive engine does not raise the presumption of negligence. In this case, we-need not, and do not propose, to decide which is the better rule. The evidence is the agreed facts; and they show that the company had supplied its engine with all the most approved appliances in use for preventing injuries by the escape and communication of fire therefrom to property or combustible material upon or adjacent to-the line of the railway, which was in good order, and-was operated by competent and careful servants of the defendant. It also appears as a fact, that from engines-[318]*318•of the same make and properly constructed and operated, burning coals and embers are sometimes blown by a high wind. It thus appears that no care or precaution that science or skill could provide was omitted in the construction of the engine to guard against such accidents as the one that occasioned the loss in this case; and any ■possible want of care or diligence on the part of the employes, as to this matter, is negatived by the facts. In such a state of facts is the railway company liable? It is not denied that the company was in the pursuit of its legitimate business, pursuing it in exact conformity •with its rights', and conducting it with scrupulous care and skill. If they are responsible for the loss, then •'it must be because they are insurers, and not because of any careless, unskillful, or improper use of their own property. This would be to apply to railway companies .-.a liability never recognized as resting upon individuals, and we are referred to no case or principle which would make the company liable in this case. The books are full of cases holding the reverse; we refer to some of the ■most carefully considered : Burroughs v. Housatonic Railway Co., 15 Conn., 124; Rood v. N. Y. and Erie Railway Co., 18 Barb., 80; Griser v. Phil. & Read. R. Co., 8 Pa. St., 366; Sheldon v. Hudson Riv. Ry. Co., 14 N. Y., 218 ; Smith v. H. & St. Jo. R. R. Co., 37 Mo., 287; The Ill. C. R. Co. v. Mills, 42 Ill., 497; The O. & M. R. Co. v. Shanefelt, 47 Ill., 497; Ryan v. N. Y. Cent. R. R. Co., 35 N. Y. 210 ; Ind. & Cin. R. R. Co. v. Paramore, 31 Ind., 143; Pierce on Railways, 313. The plaintiff in error was exercising in a reasonable manner and with great caution . a lawful right, and in so doing an accident proceeding • from his train caused the loss. Por this the plaintiff in error cannot be held liable.
[319]*3193. Ginas and ofeivny?nn*M [318]*318We have purposely omitted so far any consideration of [319]*319how far the “ standing grass and weeds upon the right of way, and scattered along and lying in the ditch beside the track of the railway” of the plaintiff in error of itself constitutes negligence. The company and adjoining owner both had upon their premises the same combustible material, and each contributed to the spread of the fire that occasioned the loss; and it is an almost universal fact, observable everywhere in our State, that the same combustible materials are found in almost every section of the State, the natural result of a rich soil, and uncropped growth. To hold the existence of such a condition of things negligence, would be to declare a liability for accidental fires, as between citizen and citizen, heretofore unknown to the law, and which we do not feel authorized to incorporate into our code. This very question was decided in Illinois in the cases of the Ill. Cent. Ry. Co. v. Mills, and the O. & M. R. R. Co. v. Shanefelt, supra; and those decisions were but the enunciation of well-known principles applied to a given state of facts.
The judgment must be reversed, with directions to ■enter judgment on the facts for the defendant, the plaintiff in error in this court.
All the Justices concurring.