TYSON, J.
Tlie complaint contains three counts. Counts one and two are substantially the same. They are no more than legal conclusions. Not a single fact is alleged in either out of which any duty arose or was owing on the part of the defendant to the plaintiff, nor in Avhat the breach of duty consisted upon which the plaintiff predicates the defendant’s negligence. It would be difficult to frame counts more general, and containing less information to the defendant as to Avhat it is required to defend against than these. As to Avhether the plaintiff complains of the defendant for the negligent destruction of its cotton while the cotton aa'Us in transitu, in the warehouse of the defendant, upon the platform' of defendant’s station house, on the right of Avay of the defendant or on the premises of the plaintiff, count number two does not inform ns. Furthermore, by what means or through what agency the fire was communicated to plaintiff’s cotton is also a matter of conjecture. Whether by sparks emitted from a passing engine which directly set fire to the cotton or to some inflammable substance upon the defendant’s right of Avay and thereby communicated to the cotton, or Avhether by carelessness of some one in charge of the station, the house or platform of the defendant Avas destroyed by fire Avhich burned the cotton, or by the carelessness of some agent or servant of defendant in the handling of <a lighted lamp, candle, match or torch communicated the fire to the cotton, Ave are not informed, as Ave have said, by either of these counts. It requires no argument to show that the defendant would be at a serious disadvantage if required to take issue upon a complaint couched in such broad language as that affords it no information whatever as to the act of non-feasance or misfeasance complained of. If the fire was communicated to the cotton in either of the ways suggested, and of which the plaintiff Avould have the right to make proof, if issue was taken upon the count, the character of the evidence required of the defendant to rebut the contention Avould be materially and entirely different. Should plaintiff rely upon a destruction of the cotton by means of sparks from a passing engine, the question of the proper con[248]*248struction or handling of 'the engine would he the issue. Should it rely upon the destruction of the cotton by the careless handling of a lighted lamp, candle, match or torch by the agent or servant of the defendant, the issue would be radically different.
The pleadings must be as brief as is consistent with perspicuity and the presentation of the facts or matter to be put in issue, in an intelligible form. No> objection can be allowed for defect of form, if facts are so presented that a material issue in law or fact can be taken by the adverse party. — Code, § 3285.
In Phœnix Insurance Co. v. Moog, 78 Ala. 301, this court said: “Precisely the same principle applies to averments of negligence, whether urged by way of defense or in maintenance of an action. It is not sufficient to aver mere conclusions of law — the facts must be averred from which the conclusion of negligence is dedueible.” After quoting this rule, Justice Clopton, in Ensley Railway Co. v. Chewning, 93 Ala. 26, said: “This rule has been relaxed from necessity in cases where the cause of action consists in the non-performance or misperformance of duty. In such cases tlié rule has been thus stated: 'When the gravamen of the action is the alleged non-feasance or misfeasance. of another, as a general rule, it is sufficient, if the complaint avers, facts out of which the dutjr to act springs, and that the defendant negligently failed to do and perform etc. ; not necessary to define the quo modo or to specify the particular acts of diligence he should have employed in the performance of such duty.’ The reason given is, 'what the defendant did and how he did it and what he failed to do are generally better known to the defendant than to the plaintiff; and hence it is that, in such cases, a general form of averment is sufficient.’ ” This rule is announced and recognized as the proper one by this court, in the cases of Mobile & Ohio Railroad Co. v. George, 94 Ala. 214; Bessemer Land & Improvement Co. v. Campbell, 121 Ala. 50; Montgomery St. R’y Co. v. Armstrong, 123 Ala. 233, and others. In each of these cases, however, there was a general averment of fact constituting the non-performance [249]*249or misperformance of duty out of which the negligence of the defendant arose as well as the facts out of which the duty to act sprung. Courts of other jurisdictions recognize and enforce this rule and it is stated generally to be that the complaint or declaration in actions for negligence should allege a duty owing the plaintiff by the defendant or state the facts from which the law will imply the duty and the plaintiff need not set out in detail the specific acts constituting the negligence complained of, as this would be pleading the evidence. — 14 Ency. Pl. & Pr. 331, 333. In the well considered case of Snyder v. Wheeling Electrical Co., 43 W. Va. 661, the Supreme Court of West Virginia interprets and applies the rule under consideration. It is there said: “One error alleged is the action of the circuit court in overruling a demurrer to the declaration. The specification of its defect is that it ought to, but does not set forth the duty and aver the neglect;” and citation is made of the language in the opinion of Clarke v. Railroad Co., 39 W. Va. 732, that a declaration in “tort must have requisite definiteness to inform the defendant of the nature of the cause of action and the particular act or omission constituting the tort,” and reference is made to Poling v. Railroad Co., 38 W. Va. 645, holding that a declaration for negligence “is good if it contain the substantial elements of a cause of action, the duty violated, the breach thereof properly averred,. with such matters, as are necessary to render the cause of 'action intelligi-. ble, so that judgment according to laAV and the very right of the case can be given.” I think these statements are good law. IT'ogg PI. and Forms, section 140, says: “That it is settled as a general rule that it is necessary to state the particular acts which constitute negligence. This is so, but we must take care not to misapply this statement. The West Virginia cases cited to sustain the rule are cases against railroads for killing stock. If a declaration allege that a railroad killed stock by negligently running over it, as in those cases, that would be sufficient, without more details of the circumstances of running over it; but I take it that it would not be euough simply to say that the company negligently killed a [250]*250liorse. You must aver the duty and aver the existence or presence of negligence in its performance and specify the act working damage, but need not detail all the evidential facts of negligence. You must tell the defendant, even under this general rule, that he negligently did a specific act doing harm. In other words, you may say that the defendant negligently did or did not do so and so> without detail as to the mere negligence, but you must state the acts that are the basis of his liability. * * * The object of a declaration is to give the facts constituting the cause of action, so they may be understood by the party who is to answer them, and by the jury and court who are to give verdict and judgment on them; and though, in an action for negligence, it is not necessary to state with particularity the acts of omission or commission, yet lest too loose a practice shall grow under this rule, it may be well to state * * that this rule does not justify a general and indefinite mode of declaring, admitting of almost any proof. * To avoid misunderstanding, it is important to add that the declaration need not state the particular facts that are not primary or main facts, but only are evidence of primary facts. 'When the primary facts are given, then all other facts merely incidental that go to prove the primary facts may be proven without specification in the declaration.”
The requisites of a good declaration in action for negligence are well stated by Wiles, J. in Gautret v. Egerton, L. R. 2 C. P. 371, 374. “It ought,” he says, “to state the facts upon which the supposed duty is found, and the duty to the plaintiff with the breach of which the defendant is charged. It is not enough to show that the defendant has been guilty of negligence and how he became bound to use care to prevent injury to others.”
“Such a duty arises out of some relation existing at the time between the person injured and the defendant, which the complaint, by the averment of facts should shove” — Thiele v. McManus, 3 Ind. App. 132.
See also a statement and application of this doctrine in Smith v. Tripp, 13 R. I. 152; Kennedy v. Morgan, 57 Vt. 46; The Flint & Pere etc. R’y Co. v. Stark, 38 Mich. 714; [251]*251The City of Buffalo v. Holloway, 7 N. Y. 493; Splittorf v. The State, 108 N. Y. 205; Sweeny v. Old Colony & Newport R. R. Co., 10 Allen 368; Angus v. Leg, 40 Ill. App. 304, and Seymour v. Maddox, 71 E. C. L. 326.
In Metcalf v. Hetherington, 11 Ex. Rep. 257, it is said: “A declaration which charges a breach of duty, must contain an allegation from which the duty can be inferred, otherwise the declaration is bad.’’ — Dutton v. Powles, 2 Best. & S. 174, 31 L. J. Q. B. 191; Cone v. Chapman 5 Adol. & E. 647; Hurdman v. N. E. Railway Co., 3 C. P. Div. 168; Form of complaint in actions against railroad company for negligence in using, and managing locomotives found on page 351 of Heard’s Civil Precedents.
Count number 3 differs in substance only from counts 1 and 2 in the averment “the defendant, by the negligence of its agents and servants who were then and there engaged in the operation of a train of cars and engine, upon defendant’s railway at Bozeman., Alabama, negligently threw from said engine, sparks, which set fire to cotton,’’ etc. Here again not a single fact is averred out of which the duty to act arose, and it is as defective in this respect as counts 1 and 2. At best,, what duty was due to the plaintiff by the defendant in the performance of the act by its agents or servants in throwing from the engine sparks, lies in mere inference,, argument or deduction.It is certainly not averred. “Facts, and not mere inferences, arguments or deductions, áre required to be alleged in pleadings.” — Meadows v. Meadows, 73 Ala. 356.
In my opinion the counts are bad, and the demurrer to each of them should have been sustained. A majority of the court, however, do not. agree with me but hold the counts are sufficient. To my mind this holding not only emasculates the statute (§3285), but contravenes all rules of good pleading as well as many well considered opinions in other cases delivered by this fcourt, where negligence is the gravamen of the action. — Central R. R. Co. of Georgia v. Lamb, 124 Ala. 172.
The testimony offered by the plaintiff tended to show that sixty-six bales of cotton belonging to it of the value of $2,200, located on its premises fifty feet -and two inches from the center of the defendant’s track, were destroyed [252]*252by fire originated by sparks emitted from passing- engine No. 294 attached to freight -cars. It was -shown that there was no fire at the time in any of the buildings adjacent to the cotton from which a spark would probably have fallen. That the Avind was bloAving from the track in the direction of the cotton at the time the train passed. That the train did not stop at the station, but ran by at a rapid rate of speed, and that the locomotive was emitting a great many sparks. The witnesses for the plaintiff say that thé only thing they noticed unusual about the engine or the train was the rapid speed at which it Avas traveling- when it passed. The evidence shows also that the train at this point Avas going up grade and that an engine emits more sparks in climbing a grade, than Avhen running upon a level -track, on account of the exhaust being greater.
The evidence introduced by the defendant established without dispute that the train was a light one and was managed by skillful persons, in a proper manner. That the locomotive was equipped 'with the latest practical improved appliances to prevent a-s far as possible the emission of'sparks and was in good repair and condition. That the appliances upon this engine were such as are used by other well regulated roads. That no appliance or -equipment would prevent the escape of -sparks. That the appliance upon this engine was a wire netting AAdtli apertures in it to alloAV the exhaust to pass through. That if the apertures were smaller than those in use upon this engine, it would cause it to choke, and when this occurred, the engine would not produce steam. That when the train passed Bozeman -station, where 'the cotton was destroyed, the engine was -emitting no more than the usual amount of sparks and the quantity of -sparks escaping depends upon the exhaust — when great the s-parks would fly further and higher.
The first question presented is the one involving the burden -of proof, and the extent of its operation. As to the burden, whether on the plaintiff -to show some fact establishing- negligence on the part of the defendant in the operation or equipment of its engine, or whether upon the defendant to prove due care in its handling and [253]*253equipment after proof by plaintiff of the origin of the fire from sparks emitted by it, the courts are at variance. It seems, however, that in this State the rule is, that the mere communication of fire by a railroad engine is of itself' sufficient to raise a presumption of negligence against the company. It has its foundation in the practical necessities of the case. Its locomotives from which the fire escapes are entirely within the control and under the supervision of the company, and its agents or servants know whether or not they are properly equipped to prevent the escaping of fire, and they know whether any mechanical appliances were employed for that purpose and if so, what was their character, while on the other hand the OAvner of the property consumed has little or no opportunity to learn Avhether it was a case of unavoidable accident or negligence. Such facts may be easily obtained and proved by the company; and if its appliances are of proper pattern and construction and in good repair, and there has been no negligence in the operation of the engine, the presumption of negligence arising from the escape of fire can be rebutted. Care should liOAvever be observed, to distinguish between the prima facie presumption of negligence raised against the company upon proof of communication of fire from sparks from an engine, merely for the purpose of shifting the burden of proof and prima facie evidence of negligence in fact, lest the rule 'be misapplied; and the presumption indulged to an extent of making out the plaintiff’s case as against the undisputed evidence of the exercise of clue care in the handling and the proper construction of the engine. The extent of the rule is as said by Justice Clopton in L. & N. R. R. Co. v. Reese, 85 Ala. 502: “We do not understand, that in actions for injuries caused by negligent escape of fire from a railroad engine, it operates, or is intended to abrogate or modify the general rule, which makes it incumbent on the plaintiff, in the first instance, to establish a prima facie case, or to devolve on the defendant the burden of doing more than disproving the prima facie case shown by the plaintiff. Railroad companies, being authorized to employ the poAverful and dangerous agency of steam, are required [254]*254by law to use due and reasonable care to prevent injury to the property of others; as has Often been said, a higher degree of care. Reasonable caire, however, does not require ■ the ' adoption Of every new invention and contrivance, which science may or can suggest as to the utility of which’ men equally skilled may . differ. They • fulfill the ' measure of their duty, in this respect, by'adopting such appliances and contrivances as are in practical use by well regulated railroad companies, and which ’have been proved by experience to be adapted to the purpose. When they have .dischargedThis duty, they are not liable for accidental injuries caused by the escape of fire from their engines. The inerefact that a fire originated from sparks, emitted from an engine, is hot sufficinet to fasten a liability on the company, neither -does the rule so operate. It is not a rule liability, but of evidence. * i:' On the advanced progress in mechanical appliances, and the practical demonstration of Their utility and efficiency, a reason-aide inference may arise, when- fire originates from sparks emitted by a locomotive in sufficient quantity or volume to occasion damage, that the engine is not properly constructed, or that it;has not the improved appliances, or i.s not managed with care. WTien the inference is repelled by proof of the proper construction of the engine, and use of the proper appliances and careful management, the plaintiff cannot maintain the action, without making proof of other negligence or want of care.” •
This principle is stated in 13 Am. & Eng. Ency. Law (2d ed.) 504, -arid supported by the authorities cited in the notes, to be: “The general rule on this subject is that if the defendant shows that the engine alleged to have caused the fire was of proper construction, and equipped with approved devices and appliances to prevent the escape of fire and sparks, was in good repair and prudently managed and controlled, the prima facie presumption arising from the mere communication of fire will be rebutted.” And as to whether the presumption is rebutted, is for the court or jury, the rule seems to be, “that where there is no evidence, direct or inferential, of actual [255]*255negligence, then if proper evidence of due care in all respects is presented by the defendant the case will be one for the court, in the sense that the mere presumption will not be given the effect of evidence, so that a conflict of evidence for the jury is presented.” — lb. 507. And tin's statinent of the rule is recognized and announced in the quotation above from L. & N. R. R. Co. v. Reese, 85 Ala. 502.
In Spaulding v. The C. & N. W. Railway Co., 33 Wis. 591, is is said: “But the learned counsel for the plaintiff very ingeniously argue, that the presumption that the defendant’s locomotives were not properly constructed and equipped, has the force and effect of testimony in the case; and that the question whether the testimony introduced for the purpose of overcoming such presumption is sufficient for that purpose, is necessarily a question of fact to be determined by the jury. The argument would probably be a sound one, were this a presumption of fact. Its weight and force, and consequently the amount of proof essential to overcome it, would in such Case be for the jury, and not for the court, to determine. But the presumption under consideration is clearly one of law, and is governed by an entirely different rule. Its weight and effect, and the amount and. character of the proof necessary to overcome it, are questions for the court, and were determined by this court -on the former appeal. In such cases, if there is a conflict of testimony, the jury must determine what facts are 'proved; but where, as in this case, there is no .such conflict, and the testimony is clear and satisfactory against the presumption, it is the duty of the court to hold, as matter of law, that the presumption is -overcome. If, instead of doing so, the court leaves it to the jury to determine the fact, it is -error, which will work a reversal of the judgment.”
Again the same court said in Spaulding v. C. & N. W. R’y Co., 30 Wis. 122, 123: “The presumption, therefore, of negligence or of the want of proper equipment, arising from'the mere fact of fire having escaped, is not conclusive, nor, indeed, a very strong one, but; of the two, rather weak and unsatisfactory. It is indulged in merely for the purpose of putting the company to proof and [256]*256compelling- it to explain and show, with a reasonable and fair degree of certainty, not by the highest and most clear and unmistakable kind of evidence, that it had performed its duty in this particular.’’ This case was cited approvingly in L. & N. R. R. Co. v. Reese, supra. Wood on Railroads, pp. 1576-77 and note 1; Sherman & Redfield on Neg., (5th ed.) 676 and note 12; McCraig v. Erie R. Co., 8 Hun. (N. Y.) 599; Menominee River S. & D. Co. v. Milwaukee & N. R. Co., 91 Wis. 459.
In kindred cases, involving the presumption of negligence for'killing stock, where the burden of proof is cast upon the railroad company by the statute, this same principle has been frequently recognized and enforced by this court. — Code, § 3442; A. G. S. R. R. Co. v. Moody, 90 Ala. 46; L. & N. R. R. Co. v. Hembree, 85 Ala. 481; A. G. S. R. R. Co. v. Smith, 85 Ala. 208; A. G. S. R. R. Co. v. McAlpine, 75 Ala. 113, 121; Anderson v. B. M. R. R. Co., 109 Ala. 129.
Applying these principles to the facts as disclosed by the record in this case, conceding that the evidence introduced .by the plaintiff' tends to establish that the fire-originated from sparks emitted from the engine of defendant, it must be held as a matter of law that the presumption indulged is rebutted, and the defendant entitled to have the affirmative charge requested by it to be given.
It may be and doubtless will be said that the cotton destroyed was fifty feet from the 'center of the track, making it, practically, the same distance from the passing engine, and that this fact affords some evidence of actual -negligence either in the. construction or equipment of the engine or its handling. In the absence of evidence as to what distance -a properly equipped and skillfully managed engine, under similar atmospheric conditions, would throw sparks, it is obvious that in order for the jury to conclude from the fact that the cotton was located fifty feet away from the track when destroyed -is evidence of negligence, they must indulge a presumption of negligence or base their conclusions upon their own judgment, experience or knowledge. Confessedly the defendant is not answerable in damages [257]*257for the reasonable exercise of a right. Being authorized by law to operate its locomotive engines by steam, which of necessity must be generated by the use of fire, and it being impossible to construct them so as to 'be successfully operated without emitting sparks or burning cinders, its liability arises only when it is shown that this right was exercised negligently or maliciously. Courts cannot presume the wrongful or negligent exercise by i t of the lawful right,, but affirmative proof, of some fact tending to establish the wrongful or negligent exercise of it by the defendant must be adduced. — 8 Am. & Eng. Ency. of Law, p. 11 and note 1. Nor can jurors be permitted to consult their own judgment, experience or knowledge for the purpose of supplying a deficiency in the proof. In the exercise of their judgment, experience or knowledge, they must be confined to the weight, credibility and sufficiency of the evidence offered. Their province is “to determine the facts in the case from testimony given by witnesses and not from their own judgment, or experience or knowledge.”- — Burrows v. Delta Transportation Co., 29 L. R. A. 468. Nor can they take judicial cognizance of the fact that sparks may be borne. a given distance by the wind. — Hinds v. Barton, 25 N. Y. 547.
In the case of Musselichite v. Receivers, 4 Hughes (U. S.) 166, the distance was forty yards, and the court directed a verdict for the defendant, saying: “The trains in this case were running lawfully -over the company’s property; * * running thus, they are not responsible for fires arising from sparks, proceeding from their -own engines unless it is proved that the emission of the -sparks was due to negligence -on the paid of the defendants, either in using engines improperly equipped and furnished ; or in using properly furnished engines in some negligent manner.”
In Hagan v. Railroad Co., 86 Mich. 615, the building destroyed was 160 feet from the track. The opinion expressly points out the evidence tending to prove actual negligence and the decision is made to rest upon that point and not upon the distance.
[258]*258In Pa. & N. Y. Canal & R. R. Co. v. Lacey, 89 Pa. 458, the distance was ninety feet from the railroad, and yet the court justified the submission of the case to the jury upon the ground that the evidence showed the emission of unusually large cinders by the locomotive. -To the same effect is Sheldon v. Hudson River R. R. Co., 14 N. Y. 218; where the distance was 671 feet; Huyett v. Philadelphia & Reading R. R. Co., 23 Pa. St. 373, where the distance shown was 77 feet; Mo. Pac. R’y Co. v. Tex & P. R’y Co., 41 Fed. Rep. 917, the distance being from 100 to 150 feet; Gumbel & Co. v. Railroad Co., 48 La. Ann. 1180, the distance shown to be more than 40 feet, though how much further is not stated; Ill. Cent. R. R. Co. v.McClelland, 42 111. 355, the distance was proven to be 100 feet.
In Hull-v. S. V. R.R. Co., 14 Cal. 387, while the distance is not shown in the statement of facts, the court said: -“There was proof to show that this result was not probable from the ordinary working of the engine,” and sustained the-railing of the .lower-court in submitting the question of negligence vel non to the jury for this reason.
Many other cases can be foxxnd where the distance between the property destroyed and the trade was greater than here, yet in none of thenx is it intimated by the coxirt, that mere proof of this fact was evidence of negligence in fact. Nor can the expression in the case of L. & N. R. R. Co. v. Malone, 109 Ala. 516, that “We are of opixxion that it can be laid -down as a soxxnd proposition of law, in nowise dependent upon the experience and observation of- jixrors, as distinguished from common knowledge, ‘that if fire is originated by the falling of sparks from an engine at a distance of sixty-three feet it is the result of negligence, arising either from impxuper management of the engine or defective appliances,” when construed in connectioix with the evidence in the cause, be said to so hold. For the Jxxstioe delivering the opinion'expressly says in the next succeeding sentence- that “Certainly the tesimony here referred to was undisputed “that it was impossible'for engines of that construction and same appliances to set fire to any-[259]*259tiling along its (defendant’s) track.” If this was true, and the fire did originate from the sparks emitted from' an engine, then of necessity there must have been some defect in the equipment of the engine or a negligent operation of it. That case is clearly distinguishable from the one under consideration. In that case there was evi-' dence of “an unusual and large rush of sparks from the engine” and as we have above pointed out that it urns impossible-for engines properly equipped and handled to emit sparks which would set fire to property along the track. No such evidence was introduced in this case. Had there been, in view of the evidence offered bv the defendant, the question of actual negligence vel non Avould have been a question of fact for the jury. The first above quotation from L. & N. R. R. Co. v. Malone construed properly is not at variance with the principles announced in L. & N. R. R. Co. v. Reese, supra, which is the almost universal rule in England and this country. And does not go to the extent of holding the presumption, which we have shown cannot be accorded the effect of evidence, to establish actual negligence, but simply indulged by the courts for the sole purpose of requiring the company to explain and show that it has performed its duty with respect to the equipment and operation of its locomotives, is a conclusive one, incapable of rebuttal. Manifestly this is true Avhen Ave take into consideration, that no man can say to Avhat precise distance a spark may be driven by the wind and kept alive by the atmospheric conditions prevailing at the time of its emission and also the fact, Avhich is common knowledge and proven undisputedly in this case, that fire will escape from the best equipped and most prudently operated locomotives .in sufficient quantities to ignite combustible material along the track. — L. & N. R. R. Co. v. Miller. 109 Ala. 506.
Again, it may be said that the plaintiff’s evidence shoAvvs that the engine Avas emitting a great many sparks. But it was not shewn that this was unusual, or that a properly equipped and prudently conducted engine Avould not emit quite as many as this One did, loaded as this ore was, going at the same rate of speed upon a similar grade and"burning the samé kind of fuel. Indeed, thq [260]*260witnesses for the plaintiff say that they noticed nothing unusual about the engine or its operation except its speed, and 'the engineer operating the engine testified that it was emitting no more sparks than the usual amount when passing the point where the cotton was located. “Proof that the fire occurred while the engine was running at rate of speed greater than that allowed by law does not of itself establish the liability of the company.” — 3 Wood on. Railroads, p. 1603. This being so, obviously when the rate of speed was not regulated by any statute as in this case, the rapidity with which the train was traveling cannot have the effect of tending to prove negligence in the construction, equipment or operation of the engine. While the evidence introduced by the plaintiff was competent for the purpose of proving the communication by fire of sparks emitted by the engine, yet it does not tend in the remotest degree to prove negligence in fact, which the plaintiff is bound to do, after the shifting of the burden upon it by the proof made by the defendant o'f due care. See also Searles v. M. R. Co., 101 N. Y. 661; Grant v. P. & N. Y. R. Co., 133 Ib. 657; Flinn v. N. Y. C. & H. R. R. Co., 142 Ib. 11; Metropolitan R’y Co. v. Jackson, 18 English Ruling Cases, 677.
The remaining question which we will discuss -is the one involving the doctrine of contributory negligence invoked against the plaintiff in placing its cotton upon its premises so near the track of the defendant’s road as that in case the agents or servants of the defendant are negligent in the management of the. locomotive or in case there is .negligence in the construction of the engine, the cotton may be destroyed by fire, caused by sparks emitted from the engine. Where contributory negligence is pleaded, it is a plea in confession and avoidance, which admits negligence on the part of the defendant, but seeks to avoid liability therefor by alleging that the plaintiff was guilty of negligence which, contributed to his injury. 5 Enc.y. PI. & Pr. 11. “Assuming as a postulate, the negligence of a defendant as a proximate cause of an injury, then the essential elements of contributory negligence [261]*261on the part oí a person injured, are, 1. A failure on his part or the part of some person with whose negligence he is chargeable, to exercise ordinary care to avoid injury; and, 2. A proximate connection between such failure to exercise ordinary care, and the injury, so direct and immediate, that, but for such want of ordinary care, the injury would not have occurred. That is, the negligence of the defendant and the negligence of the plaintiff must have been so inextricably mingled together, jointly and in combination causing the injury, that it cannot be said that the injury would have happened had the plaintiff or person injured been free from fault at the time of the injury. But plaintiff’s act of omission when only a remote cause, or a mere antecedent occasion or condition of the injury is not contributory negligence.” — 4 Am. & Eng. Encv. Law, 18 and notes.
The only limitation upon the right of enjoyment of .one’s property is to do so in such manner as not to injure that of another — sic utere tuo ut alienum non loedas. This is the sum and substance of his whole duty.
In placing his cotton upon his own premises, the plaintiff was in the exercise of a lawful right and no possible injury could come from that act to others. He cannot be required in locating it to anticipate the negligence of the defendant. On the contrary he would have the right to presume that the defendant would use properly equipped locomotives, and that its agents or servants would operate them in a careful manner. It is true the plaintiff is chargeable with the knowledge that properly constructed and equipped engines carefully handled when in operation emit sparks. And should he place his property within the area within which sparks or live cinders may fall from a properly equipped engine, carefully handled, and it is destroyed by fire caused by sparks so emitted, it is his loss. But this loss must be attributed to the fact that the railroad company has been guilty of no negligence and cannot be made to rest upon the doctrine of contributory negligence. The fact that the area within which sparks or live cinders may fall from a properly equipped engine, carefully handled, is incapable of definite ascertainment does not and cannot affect the [262]*262principle. The area within which they are likely to fall and ignite inflammable substances depends upon the atmospheric conditions, the velocity of the wind, the speed of the engine at the time they are emitted and many other conditions. However, the railroad company, while operating its properly equipped engines in a careful manner is not responsible for results flowing from the action of any of these conditions upon the sparks or hot cinders emitted by them. The pri ne i pies - involved in the question under consideration are very clearly stated in the case of Philadelphia & Reading Railroad Co. v. Hendrickson, 80 Pa. St. 182. It is there said: “The defendants rested their case on the condition of the roof of the baim and the dry weather. The substance of the defendants’ points.was, that if the condition of the barn ivas such as to render it more liable to take fire than if it had a secure and safe roof, the plaintiff Avas guilty of contributory negligence in suffering it to be in that condition. This is clearly unsound and if sustained Avould reqiiire the OAvner of property lying along a railroad to keep it in a condition to be always safe from sparks or fire throAvn from the passing engines. It Avould deprive the OAvuer of the enjoyment of his property in the AAray most suited to himself. He could not put his hay into stacks or ricks or suffer straAV to lie around his barn for his cattle to feed or rest upon. He must keep his houses, out-houses, stables and barns under the best knoivn- safe roofs or insure them against the negligence of the company. An OAvner of property near to a railroad must run all the risk of a proper and careful use of the road, for this is the company’s right. When the railroad company uses the most approved spark arresters and the proper care and vigilence in the running of its engines and the land-owner’s barn or hay rick or meadOAV takes fire from the sparks throAvn out, he has no remedy. It is his oavu risk, if he build too near to the railroad or erects his stacks or scatters his straw where they may be consumed by fire caused by no negligence. But when actual negligence is proved and the loss arises from it, the mere condition of his property is no defense to the company. * * The conclusion from the cases is very clear, that a plain[263]*263tiff is not responsible for the mere condition of his premises lying along a railroad, but in order to be held for contributory negligence, must have-done some act or omitted some duty which is the proximate cause of his injury, concurring with the negligence of the company.” The placing of the cotton in the place where it .was when destroyed cannot be said to be the proximate cause of its destruction, but a mere condition. If destroyed by the. negligent act. of the defendant this Avas the direct and proximate cause. We are aware that in some jurisdictions the doctrine of contributory negligence has been recognized and enforced in this class of cases. But the great weight of authority in this country and in England is decidedly the other Avay. Upon principle, AAre do not think it has any application to this sort of a case.— 8 Am. & Eng. Ency Luav, 16, and authorities cited in note 1; Sherman & Bedfield on Neg., § 679, and note; note on page 74 of 38 Am. Dec.
Reversed and remanded.