By the Court,
Hawley, J.:
This action is brought by plaintiff to recover damages for the burning of certain cord-wood, on the 26th day of May, 1873. The complaint alleges: “ That the defendant by its agents, servants and employees, not regarding its duty in that respect, so carelessly and negligently ran and managed its locomotives, that the said wood was fired and completely destroyed by fire carelessly and negligently dropped and thrown from said locomotives, by the said servants and employees of the said defendant.” On the trial the court permitted witnesses to testify that previous to May 26, they had frequently seen- fil-es in the same wood-yard, caused by coals dropped from defendant’s engines, and also, at various times seen sparks from said engines at the same place of sufficient size to set fire to cord-wood. The defendant objected to the admissibility of this testimony on the ground [285]*285that it “was irrelevant, incompetent, and as not tending to establish any issue in this case.” This objection was general. If, therefore, the testimony tended to establish any of the issues raised by the pleadings, the objection was properly overruled. •
1, Was this testimony competent, under the facts of this case, to prove any of the issues raised by the pleadings? This, in my judgment, is the most important question presented by this appeal. There is a conflict in the authorities bearing upon this point. In Baltimore and S. R. R. Co. v. Woodruff, the lower court admitted testimony showing that before the occurrence of the fire upon plaintiff’s farm, fire had been communicated by defendant’s engines to the property of other persons on defendant’s road. The court of appeals held this to be [error. After quoting from Greenleaf that collateral facts are calculated to introduce a wide scope of controversy, drawing off the mind of the jury from the point really in issue, 1 Green, on Ev., Sec. 52, the court say: “It is by no means a necessary consequence, that because the engine did set fire to the property of another, it also was the cause of burning that of the plaintiff. * * The evidence offered is no less objectionable in reference to the question of negligence, than to that of the firing itself. There is no time specified. We do not know whether it was one month or five years before the injury in dispute. And the instances alluded to might have occurred without the least negligence, which the defendant would have been able to show by satisfactory proof, if notified of an intention to introduce them. Or if they had been the result of great carelessness, nevertheless, the injury complained of in. this suit might have occurred when the agents of the company were using all proper precaution.” 4 Maryland, 254. It is claimed that this case is an authority directly in point. It is relied on by defendant’s counsel, who urge substantially the samé reasons against the admissibility of the testimony in this case.
[286]*286The court of appeals, in New York, has uniformly held such testimony to be admissible. In Sheldon v. Hudson R. R. Co., Denio, J., after stating the facts, said: “I think, therefore, it is competent prima facie evidence, for a person seeking to establish the responsibility of the company for a burning upon the track of the road, after refuting every other probable cause of the fire, to show that, about the time when it happened, the trains which the company was running past the location of the fire were so managed in respect to the furnaces, as to be likely to set on fire objects not more remote than the property burned. * * * The evidence * * not only rendered it probable that the fire was communicated from the furnace of one of the defendant’s engines, but it raised an inference, of some weight, that there was something unsuitable and improper in the construction or management of the engine which caused the fire.” 14 N. Y. 221. Hubbard, J., was of the opinion that the evidence “was competent, and should have been received upon the proposition whether the defendants caused the fire.” After citing several English cases, claimed to be in point, he said : “ The principle is essential in the administration of justice, inasmuch as circumstantial proof must, in the nature of things, be resorted to. * * The evidence was competent to establish certain facts which were necessary to be established in order to show a possible cause of the accident, and to prevent vague and unsatisfactory surmises on the part of the jury.” 14 N. Y. 224.
In Hinds v. Barton, 29 N. Y. 544, although the testimony was not subject to some of the objections urged in Sheldon v. Hudson R. R. Co., the court cited with, approval the language of Denio and Hubbard, J. J., above quoted.
In Field v. New York C. R. R., 32 N. Y. 339, the principles announced in Sheldon v. The Hudson R. R. Co. were again affirmed. Here the fire occurred in October, and the plaintiff was allowed to give evidence of another fire occurring on [287]*287Ms premises in May previous, and the court held that in the light of the decision in Sheldon’s case and the peculiar circumstances of the case under consideration, the evidence was not too remote or indefinite to have any just influence upon the question of the cause of the fire and of negligence. It was not proved by what engine the fire was dropped, nor that any engine had dropped coals on the particular occasion; but the fire was traced back from the burning wood to the defendant’s track, on which coals were found, and in the immediate vicinity of which the dry grass was burned off. Upon this state of facts, Davis, J., said: “As bearing upon the question how this fire came upon the track, it was competent to show that the locomotives of the defendant had been accustomed to scatter coals of fire frequently along the track.” The same justice held that “it was also competent on the question of defendant’s negligence.”
In Webb v. R. W. and O. R. R. Co., upon the trial, the court allowed evidence on behalf of plaintiff, under objection, that defendant’s engine for a month or two before the fire had dropped quantities of live coals in the locality of the fire; that there were live coals upon the track at other places at the time of the fire; and that coal at other times had dropped from the engine in question, and the court of appeals held that such evidence was “pertinent and proper.” 49 N. Y. 424.
It is undoubtedly true that the value of any given case as an authority depends very much upon the similarity of the facts with the case under consideration. Facts are the controlling elements in every case. I fail, however, to observe the force of the argument of defendant’s counsel in their efforts to point out an essential difference between the facts of this case and the cases in New York. True, the engines of defendant in 14 and 32 N. Y. ran night and day, and with such speed, that no particular note could be taken of them as they passed. - It was there impossible to designate the [288]*288offending engine. Here there was but one locomotive, the “ I. E. James,” in the wood-yard on the day of the fire. In 14 N. Y. the testimony was confined to a time at or about the time of the fire. Here witnesses were allowed greater latitude. But are these distinctions important? Do they change the reasoning of the opinions we have quoted; or require a different rule in this, from other cases ? What are the facts of this case ? Plaintiff’s wood caught fire in some manner to him, at the time, unknown. How did the fire originate? This was the first question to be established in the line of proof. Positive testimony could not be found. The plaintiff was compelled, from the necessities of the case, to rely upon circumstantial evidence. What does he do? He first shows, as in the New York cases, the improbabilities of the fire having originated in any other way except from coals dropping from defendant’s engines. He then shows the presence, in the wood-yard, of one of the engines of the defendant within half an hour prior to the breaking out of the fire. Then proves that fires have been set in the same wood-yard within a feto weeks prior to this time, from sparks emitted from defendant’s locomotives. I think such testimony was clearly admissible, under the particular facts of this case, upon the weight of reason as well as of authorities.
The conclusions reached by the court of appeals in Baltimore & S. R. R. Co. are not consistent with the testimony in this case, and hence the value of its reasoning is materially shaken if not entirely destroyed. On the question as to the cause of the fire, the court in Maryland held that the very nature of an engine was sufficient to satisfy a jury that it would probably set fire to property along the road, and, that for this reason the testimony ought to have been confined to its manner of construction. Upon the question of negligence, the court said it could not be denied “ that such an engine may communicate fire when running in the best con[289]*289dition.” Mechanical ingenuity is constantly employed in inventing new and improved machinery of every hind and character. It is fair to presume that decided improvements have been made in the appliances used on railroads to prevent the emission of sparks or dropping of coals from the engines since 1853, when the Maryland case was decided.
But we are not required to enter into any speculations upon this point. Holloday, a witness for plaintiff, who for thirty years had been engaged as a machinist and locomotive engineer, testified that an engine might be so constructed as not to throw out any fire. “It is done by putting screens in the smoke-stack and ash-pan. If an engine is supplied with the best known appliances in common use, and is skillfully managed, no sparks can escape from the smoke-stack or coals from the ash-pan that will set anything on fire.” Substantially to the same effect is the testimony of defendant’s witnesses. Bowker, master mechanic on defendant’s road, and the inventor of the appliances used on the smoke-stacks of defendant’s engines, a machinist and engineer of over thirty years practice, testified as follows: “If an engine is supplied with these appliances (his invention) and properly managed, it cannot throw sparks from the smoke-stack, or drop coals from the ash-pan that would kindle a fire.”
It is not, says Greenleaf, necessary that the evidence “should bear directly upon the issue. It is admissible if it tends to prove the issue, or constitutes a link in the chain of proof; although, alone, it might not justify a verdict in accordance with it.” 1 Green, on Ev., Sec. 51 a. The evidence was admissible, as tending to show a probable cause of the fire, and to prevent vague and unsatisfactory surmises on the part of the jury. Upon the question of negligence, it was admissible as tending to prove that if the engines were, as claimed by defendants, properly constructed and supplied with the best appliances in general use, they [290]*290could not have been properly managed, else the fires would not have occurred. There is not in my judgment any substantial reason for the objection urged to this testimony on the ground that it referred to other engines than the one shown to be present on the day of the fire. The business of running the trains on a railroad supposes a unity of management and a general similarity in the fashion of the engines and the character of their operation. Nor is the objection that plaintiff was allowed too great a latitude in proving that fires had occurred at various times extending over a period of four years, well taken. The more remote in point of time the less relevancy it would have; and the more favorable it would be for defendant. But where, as in the present case, the proof shows such fires to have occurred within a few toeeles prior*to the time when plaintiff’s wood was destroyed, and follows it up by showing that other fires have occurred at various times, at the same place, since the railroad was built, the more pertinent is the testimony. “The more frequent these occurrences, and the longer time they had been apparent,” said Davis J., in Field v. N. Y. and C. R. R., “the greater the negligence of the defendant; and such proof would disarm the defendant of the excuse that on the particular occasion the dropping of fire was an unavoidable accident.”
2. Mrs. Weston, a witness for plaintiff, was permitted to testify, against the same objection of defendant, that she had seen a fire on the track about four weeks after the fire that had destroyed plaintiff’s wood. This fire occurred from coals dropped from the locomotive “Reno.” Under the reasoning of the authorities cited as applied to the facts of this case I think the testimony was admissible. Certainly such testimony would have been admissible if directed against the “I. E. James,” the offending engine. But there is no pretense that the “I. E. James” is differently constructed from the “Reno” or any other locomotive on de[291]*291fendant’s road; or, that any different appliances are used to prevent the emission of sparks from the smoke-stack or the dropping of coals from the ash-pan. It was within the power of defendant, which must necessarily have intimate relations with all its engineers, conductors and employees, to prove these facts, if they existed. The onus prohandi is upon the defendant. If one or more of its engines drops coals from its ash-pan or emits sparks and cinders from its smoke-stack just prior to or soon after property on the line of its track has been destroyed by fire without any known cause or circumstance of suspicion besides the engines, it becomes incumbent upon the railroad company to show that their engines were not.the cause. The defendant in order to contravert such evidence should be able to show that the special facts at the time of the destruction of the property were such as to overcome the general inference from the plaintiff’s evidence, and avoid the presumption which that evidence created. Sheldon v. Hudson R. R. Co. supra; Field v. N. Y. & C. R. R. supra. This the defendant attempted by showing that the “I. E. James” was a yard engine, used to run in and out of wood-yards, and for that reason “extra precautions were always used to have and keep the appliances for the arresting of sparks in good order and condition,” &c., &c. This testimony was entitled to great weight and was doubtless properly considered by the jury.
3. • It was not error for the court to refuse to allow defendant to show that fire had occurred in the Mexican Mill wood-yard, prior to the building of the railroad. This evidence was entirely too remote in its effect. It did not tend, either to rebut any evidence offered by plaintiff, nor to establish any fact in favor of defendant. This testimony was clearly inadmissible.
4. The first instruction, asked by plaintiff and given by the court, is as follows: “If you believe from the evidence [292]*292that a locomotive engine, properly constructed and skillfully run and managed, will not set fire to cord-wood piled by the side of the railroad track, or to inflammable material that can, when set on fire, communicate fire to cord-wood; and if you further believe, from the evidence,- that plaintiff’s wood was destroyed by fire or sparks from defendant’s engine or engines, without fault or negligence on the part of plaintiff, * * you will find a verdict for plaintiff.” Three specific objections are urged by defendant’s counsel to this instruction: First, That the construction of defendant’s engines had nothing to do with the issues raised by the pleadings. No such specific objection was made at the trial to the admissibility of testimony bearing directly upon this point. The testimony of Holloday and Bid-well tended to show that the engines of defendant were not properly constructed, so as to prevent the emission of sparks or the dropping of coals. The defendant introduced testimony to prove that its locomotives were properly constructed. It met this issue and assisted in presenting it before the jury and tried the case, throughout, in the same manner as if such an allegation had been in the complaint. If the objection had been made at the proper time the plaintiff could, by leave of the court, have amended his complaint, or else have withdrawn this particular issue from the consideration of the jury. I understand the general rule of law to be that objections which by legal possibility might have been cured, or obviated, if they had been taken in the course of the proceedings under review, are unavailable in an appellate court unless they were reasonably and clearly presented in the court below. The second objection is not tenable. The words “inflammable material ” must be held, upon the familiar rules of law, to apply to such material as was shown to be on or near the track. The third objection is also untenable. If the instruction legally bears the interpretation given it by defendant’s counsel, ‘that the [293]*293jury are tolcl to find for tbe plaintiffs if tbey believe tbat tbe wood was fired by tbe defendant’s engine,” it would deprive defendant of one of its grounds of defense. But is the instruction susceptible of sucb construction ? Certainly not. Tbe jury must find, first, tbat an engine properly constructed and managed would not set sucb fire; second, tbat tbe fire was actually caused by tbe dropping of coals from defendant’s engine. If these facts are found in tbe affirmative, ■would it not inevitably follow tbat tbe defendant ivas guilty of negligence? In tbe light of tbe testimony, tbe instruction was correct and pertinent to tbe facts of tbe case.
5. Defendant contends that it was error for the court to instruct the jury that defendant was obliged to employ “the best known appliances to prevent injury to others from fire.” The rule is now well settled that railroad companies are liable, in cases of this character, for the want of ordinary care and prudence. The degree of care must always be measured by the facts and circumstances of each particular case. In cases like the present, ordinary care and prudence require the use of the best appliances known, and unless such are used it will be considered negligence. Vaughan v. The Taff Vale R. Co., 5 H. and N. 679; Fremantle v. The London and N. R. Co., 100 English C. L. 92; Jackson v. The Chicago and N. W. R. R. Co., 31 Iowa, 177; Fitch v. The Pacific R. R. Co., 45 Mo. 327; Chicago and A. R. R. Co. v. Quaintance, 58 Ills. 391. The court in Iowa, after stating the general rule, said: “ One who fails to use the best means within bis reach to prevent the destruction of property does not exercise the care of a man of common prudence.” In Missouri the court say that “when as dangerous, as well as useful, an instrument of locomotion as a steam locomotive is used, its managers are bound to a care and precaution commensurate with the danger. They have a right to use the'instrument, but have no right to scatter fire along their track; and when it is found that this is done, with no explanation of [294]*294the cause, the jury is warranted in inferring that there has been some neglect. To rebut that reasonable inference, the defendant should show that the best machinery and contrivance were used to prevent such a result.”
6. Defendant claims that in the third instruction asked by plaintiff, the court erred in charging the jury that the negligence of the plaintiff, in order to release the defendant, must have been the immediate cause of the destruction of his wood, and herein argues, that the utmost extent of the rule is that, to be considered contributory, it need only be the proximate cause of the damage. Proximate cause is oftener used, and is probably better, yet it means that which immediately precedes and produces the effect as distinguished from remote. In examining the authorities it will be found that “immediate” and “proximate ” are indiscriminately used to express the same meaning. Isbell v. New York & N. H. R. R. Co., 27 Conn. 406; 87 Cal. 406; 45 Mo. 327.
7. In the fifth instruction the jury were told that if defendant “ permitted bark and chips to accumulate on its track, and that through its negligence it set fire to such bark and chips, and that fire was carried or drawn from such fire by the wind to plaintiff’s wood-pile, and plaintiff’s wood thereby destroyed,” the verdict should be for plaintiff. I cannot see how it was possible for the defendant to be prejudiced by the use of the language objected to. The jury could only have been misled by inferring from it that it must be found as a fact that the defendant permitted barks and chips thus to accumulate. This would be exacting more than the law requires, but would make the instruction more prejudicial to plaintiff than defendant.
8. The sixth instruction, objected to by defendant, that: “ A person employing or using a dangerous agent is obliged to use care in proportion to the danger of such [295]*295agent; he is also required to use a greater amount of care where property near its road from its nature is more likely to be destroyed,” states a principle of law, applicable to this case, correctly. Fero v. The Buffalo and S. L. R. Co., 22 N. Y. 211; Gorman v. Pacific R. Co., 26 Mo. 447; F. & B. Turnpike Co. v. P. & T. R. Co., 54 Penn. State 350; C. & A. R. R. Co v. Quaintance, supra.
9. It is claimed that the court erred in refusing this portion of the first instruction asked by defendant: “Amere presumption, inference, or guess, will not be sufficient to warrant you in finding the fact that the fire occurred from sparks dropped or thrown from the locomotive; nor will the fact that a locomotive at some time during the day and previous to the fire passed the place where the wood was piled, be alone sufficient to warrant you in coming to the conclusion that fire or sparks from the locomotive occasioned the damage.” The testimony offered by the plaintiff was purely circumstantial. The various links connecting the chain of proof were to be closely scrutinized. The jury were to determine therefrom, whether or not such circumstances were convincing in their character; satisfactory, in their proof; consistent with other facts, and reasonable with the conclusions reached. The evidence upon all points must be sufficient to satisfy the mind of the jury. A mere presumption that the fire originated from the engine of defendant, or that plaintiff’s wood might have been so set on fire, would not of itself justify a verdict against the defendant. The fact that the wood was set on fire by sparks, or coals emitted or dropped from defendant’s engines must, like other facts, be established by such competent evidence as would satisfy a reasonable mind of its existence. There should be no guess-work; no jumping at conclusions. Fitch v. The Pacific R. R. Co., supra. The facts must be established, without the aid of sheer conjecture, or some presumption of [296]*296law or fact, beyond what the facts proved rationally imported. Smith v. Hannibal & St. Jo. R. R. Co., 37 Mo. 295. Plaintiff could not recover upon a possibility. The rights of property and all claims to its possession and enjoyment are dependent upon the existence of certain facts. When they are disputed and become the subjects of judicial investigation, if juries could assume their existence without sufficient evidence, and render verdicts upon possibility, probability and conjecture, the courts would be shorn of their legitimate authority and the wise and just rules of the common law, as they have been recognized and applied from time immemorial, would lose their principal value. This leads us to the examination of other questions. Did the court give the law correctly in other instructions ? Could the jury in the light of all the instructions given, and in view of all the testimony submitted, have been misled upon this point ? The case did not rest alone upon the fact that an engine had been in the wood-yard just previous to the fire. But the improbability of the fire having been set from any other cause was first established. But one house was situate near the wood-yard. The wind was blowing in such a direction as to carry sparks from this house away from instead of towards the wood pile. The fire occurred in the day time. It was discovered within half an hour after one of the engines had been in the wood-yard. It caught in the bark or chips that were on or near the track over which one of the engines of defendant had recently passed. The engines of defendant within'a few weeks prior to and after the time of the fire had set fire in the same wood-yard. Coals of fire of sufficient size to set fire to cordwood had frequently been seen by several witnesses to drop from defendant’s engines at or near the place where this particular fire occurred. The court, at defendant’s request, instructed the jury that before a verdict could be found for plaintiff “ two necessary facts must be established from the evidence to the satisfaction of [297]*297the jury: First, that the fire * * was in fact occasioned by fire dropped or thrown from a locomotive engine of -the defendant; second, that such, dropping or throwing of fire occurred through the careless and negligent conduct of defendant and its servants in the construction, repairs, management or running of the locomotive from which such fire was dropped or thrown.” In its charge the court told the jury, that “negligence must be affirmatively shown by testimony in the same manner as any other fact is shown.” It seems impossible that under this state of facts the jury could have inferred that “a mere presumption, inference or guess” was sufficient to warrant a finding-that the fire was caused by sparks or coals from the engine; or that the mere fact of the presence of an engine-in the wood-yard, near the time when the fire occurred, was sufficient to warrant any such conclusion. The withholding of this part of the instruction from the consideration of the jury was not, in my judgment, prejudicial to defendant.
10. It is argued by defendant’s counsel that the court erred in not instructing the jury “that an authority to run a locomotive, propelled by steam, is an authority to emit sparks therefrom.” The general proposition that defendant had the right to emit sparks is not denied. That follows necessarily from the authority to run the locomotive. Rood v. New York & E. R. Co., 18 Barb. 87; F. & B. Turnpike Co. v. P. & T. R. Co., supra. But it is claimed by respondent that the instruction should follow the. testimony; that an engine supplied, as it was claimed the “I. E. James” was, with the best and most suitable appliances and skillfully managed, would not throw sparks from the smoke stack that would kindle a fire. That the leaving out this qualification was calculated to mislead the jury and justified the refusal of the entire instruction. So far as the remaining portions of the instruction have any bearings on the case, the prin[298]*298ciples therein enunciated were substantially given in other instructions. The defendant, under the law, has the right to use fire, to generate steam and emit sparks from its engines. But it has no right to carelessly emit sparks in such a manner as to set fire to property along the line of its road. If it does it is negligence, for which it is liable in damages to the person whose property is thus destroyed. The instruction without qualification, if not erroneous, was certainly calculated to mislead the jury to the prejudice of plaintiff, and was therefore properly refused.
11. The fourth instruction, asked by defendant and refused by the court, was substantially given in defendant’s fifth instruction. The law in reference to the amount of care, skill, diligence and foresight, required of defendant, was correctly given to the jury.
12. The court did not err in refusing to instruct the jury that if plaintiff and his assignors by their ordinary negligence contributed to produce the injury, the plaintiff could not recover. The rule of law, in cases of this character, which releases the defendant from responsibility for damages on account of the negligence of the plaintiff, is limited to cases where the act or omission of the plaintiff was the proximate cause of the injury. Flynn v. S. F. & S. J. R. Co., 40 Cal. 19; Isbell v. N. Y. & N. H. R. R. Co., supra, and other authorities therein referred to.
13. Did the court err in charging the jury, of its own motion, that the rights of defendant should be carefully limited ? “The ordinary occupation and business of a railroad company,” said the court, “is in a word, lawful. In its ordinary business it may use the destructive element of fire and the prodigiously expansive power of steam and carry these agencies while in full operation anywhere, and along its line of track. Such rights are ' exceptional among ordinary human pursuits and business. Hence the necessity which arises that such employment and rights should be carefully [299]*299limited, and operated constantly and diligently with just regard to the rights of others.” The right of defendant to run and manage its engines is absolute; such rights are not exceptional among the ordinary human pursuits and business. In nearly every state, as in this, laws have been passed, authorizing railroad companies “to take, transport, carry and convey persons and property on their railroad, by the force and power of steam.” In conducting such business the defendant was doing precisely what the law authorized it to do. The defendant, and all other persons or corporations engaged in said business, is entitled, the same as individuals engaged in the various other occupations, to have its rights protected. The maxim of the law, sic ukre tuo, wt álienum non laedas, has as just an application to corporations created by legislative authority as to private persons in the use and control of their property. Therefore defendant’s business should, as the instruction states, “be operated constantly and diligently with just regard to the rights of others.” It is the manner in which the property of defendant is used that is to be limited, not the right to use it. The law in conferring the right to use an element of danger, protects the person using it, except for an abuse of his privilege. But in proportion to the danger to others will arise the degree of caution and care he must use who exercises the privilege. The greater the danger the higher the degree of vigilance demanded and the more efficient must be the means to secure safety. It is the duty of a railroad company using, as they do, such dangerous machines, and running in close proximity to the property of others, along its line of track, to use the utmost vigilance and foresight to avoid injury.' If the locomotive symbolizes enterprise and attests the march of improvement and civilization, it by no means follows, that either the business or social interests of the country are advanced by refusing to limit its destructive tendencies, and to protect life and property [300]*300against its misuse. It is the duty of those who use such hazardous agencies to control them carefully, to adopt every known safeguard, and to avail themselves from time to time of every improved invention to lessen their danger to others.
Could the language used by the court have been considered by the jury in the light which the learned and ingenious counsel for the defendant seek to place upon it ? I think not. In the desire of exhibiting an originality of thought, and in the statement of abstract principles, we often find in the expression of courts, language that ought not to have been used without qualification; but which when carefully considered in connection with all of its surroundings convinces the mind that it could not have misled the jury or prejudiced the parties to the action. Is not this true of the language under review? Standing alone it is subject to the criticism of counsel. But when we examine it in the connection where it is used it becomes apparent that .the jury understood from it that in the exercise, employment and use of this right which was dangerous in its character, and in this respect exceptional among human pursuits and business, the defendant was carefully limited by the law, “with just regard to the rights of others.” This makes it consistent with the other portion of the court’s charge and harmonizes it with the instructions asked by plaintiff. .
14. The court after instructing the jury that railroad companies must use the best appliances to prevent the scattering of fire, said: “But it is to be observed, that such appliances are not required to the extent of materially impairing the reasonable use of a locomotive engine.” This is claimed to be erroneous. In my opinion there is no substantial objection urged by counsel. Nor can any be given to the use of this language. The use of such appliances and the exercise of such care, as the law requires, does undoubtedly, to some extent impair the use of^ an engine.
[301]*30115. The court did not err in charging the jury that a railroad company “must be diligent in keeping its track and right of way clear of such combustible matter as is liable tobe easily ignited.” If it'was, as claimed by defendant, foreign to the issues in this case, it could not have misled the jury; and if applicable, it stated the principle of law correctly.
16. It was not erroneous to instruct the jury that a railroad company “must be especially diligeni to prevent the escape of fire and sparks from its engines, when in the immediate neighborhood of combustible property.”
17. “ But it not unfrequently occurs that the same testimony, which proves the injury, proves also the fact of negligence, without recurrence to further evidence in that particular in support of a recovery.” It could not have been understood from the use of this language, as claimed by defendant’s counsel, that proof that defendant caused the fire was sufficient to warrant the jury in coming to the conclusion that it did,not occur in any way except through the defendant’s negligence. The jury were repeatedly told that in addition to this fact, it must also appear from the evidence that the fire was caused by defendant’s negligence. The case was tried upon this theory. The jury must have so understood it and could not possibly have been misled by this general observation, somewhat unhappily expressed. Wright, J., in Field v. N. Y. C. R. R., states the rule correctly: “It often occurs, as in this case, that the same evidence which proves the injury shows such attending circumstances as to raise a presumption of the offending party’s negligence, so as to cast on him the burden of disproving it.”
18. The last objection, presented by defendant’s counsel, is that the “evidence is insufficient to justify the verdict.” With reference to the cause of the fire, I think, although the testimony is circumstantial, that it all tends to show that the fire must have been caused by the dropping of coals [302]*302from defendant’s engine. It is unnecessary to recapitulate the particular testimony upon which this belief is founded. The circumstances all point one way and seem to be inconsistent with any other reasonable conclusion. Not only the weight of the evidence, but all the evidence, tends to support the verdict upon this ground. Upon the question of negligence the defendant certainly made a very strong case. It offered testimony showing that the best appliances were used to prevent the emission of sparks or the dropping of coals. That not only ordinary care and prudence, but extra care and caution were used by all the servants and employees of defendant in running and managing its engines, especially in passing through this particular wood-yard. The “I. E. James,” the offending engine, was shown to be in perfect condition on the day of the fire, and its engineers and fireman testified that on the particular occasion of the fire they exercised extra care and caution. In fact it would, perhaps, be difficult for a railroad company to offer any further proof upon these points. But the answer to the argument of counsel for defendant is found in the simple statement of the fact that there was some evidence, offered on the part of plaintiff, which tended to show that the engines of defendant were not equipped with the best appliances in general use. The fact that fire did escape from the engine tended strongly to support this evidence. It also tended to establish the fact that there was some negligence in the management of the engine.
Under the familiar rule of law, frequently recognized by this Court, there being a substantial conflict in the evidence, the verdict must stand. I have carefully considered each and every point made by appellant, and given the whole case that attention which its importance demanded, and have arrived at the conclusion that the case was fairly tried and decided upon its merits.
The order refusing a new trial is affirmed.