CLOPTON, J.
On the trial of this action, which was brought by appellee, to recover for injuries suffered by the escape of fire from an engine, the defendant requested the court to charge the jury, that the burden of proof is upon plaintiff to show that the fire was caused by the negligence of defendant, and that evidence tending to show that it was caused by sparks from defendant’s engine, without evidence tending to show that such escape of fire was the result of negligence on the part of defendant, is not sufficient to entitle plaintiff to recover. The defendant also requested the court to further instruct the jury, that the negligence of defendant will not be presumed from the mere fact that the fire was caused by sparks escaping from defendant’s engine.
On the question presented by these charges, the authorities are in manifest and decided conflict.
Many of them, probably the greater number, maintain tbe rule, that an inference of negligence does not arise from the mere fact of fire being communicated by a passing locomotive, and that the onus is on the plaintiff to prove, in addition to the origin of the fire, some positive act of negligence on the part of defendant, or circumstances tending to [501] show a want of due care. The following authorities may be cited as sustaining this doctrine: Gandy v. Chic. & N. W. R. R. Co., 33 Iowa, 420; Phil. & Read. R. R. Co. v. Ferger, 73 Penn. St. 121; Ind. & Cin. R. R. Co. v. Paramore, 31 Ind. 143; McCaig v. Erie Railway Co., 9 Hun, 599; 1 Whart. Ev. § 360; 13 Amer. & Eng. R. R. Cases, note, 488. The most cogent reasons given for the support of this rule are, that a railroad company, which is authorized by law to operate its trains by steam, is not an insurer against accidents by fire, and is not liable for injuries caused by the use of fire in generating steam, if the right is exercised in a lawful manner, and with reasonable care and skill; and the owner of adjacent property assumes all risks incident to a lawful and proper use of the road; that negligence is the gist of the liability, without proof of which an action can hot be maintained; and by the general rule, in actions founded on negligence, the plaintiff must aver it, and the burden of proof rests upon him; and in no case does the mere fact of injury prove negligence.
The converse rule is, that proof of the mere fact that property was destroyed or damaged by fire, having escaped from a passing engine, is prima facie evidence of negligence in the construction and management of such engine, and casts on the defendant the burden to rebut the presumption. The following authorities may be cited as sustaining this rule: Bur. & Mo. R. R. Co. v. Westover, 4 Neb. 268; Carson v. Mil. & St. Paul Railway Co., 29 Minn. 12; Ill. Cen. R. R. Co. v. Mills, 42 Ill. 407; Coats v. Mo., Kan. & Tex. Railway Co., 61 Mo. 38; Burke v. L. & N. R. R. Co., 7 Heisk. 451; Case v. North Cen. Railway Co., 59 Bark 644; Spaulding v. C. & N. W. R’y Co., 30 Wis. 110; Sher. & Red. Neg. § 333; 38 Amer. Dec., note 71; 1 Thomp. on Neg. 153. These decisions base the rule mainly upon the necessity of the case. The argument is clearly and forcibly stated by Dixon, C. J. in Spaulding v. C. & N. W. Co., supra. After observing that it is the duty of railroad companies to employ all due care and skill in the construction of their engines, to prevent injury to the property of others by the escape of fire therefrom, he says: “The reasons given for requiring the companies to show that this duty has been peformed on their part, are, that agents and employees of the road know, or are at least bound to know,-that the engine is properly equipped to prevent fire from escaping, and that they know whether any [502] mechanical contrivances were employed for that purpose, and if so, what was their character; whilst, on the other hand, persons not connected with the road, and who only see trains passing at a high rate of speed, have no such means of information, and the same is inaccessible to, and can not be obtained by them, without great trouble and expense.”
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CLOPTON, J.
On the trial of this action, which was brought by appellee, to recover for injuries suffered by the escape of fire from an engine, the defendant requested the court to charge the jury, that the burden of proof is upon plaintiff to show that the fire was caused by the negligence of defendant, and that evidence tending to show that it was caused by sparks from defendant’s engine, without evidence tending to show that such escape of fire was the result of negligence on the part of defendant, is not sufficient to entitle plaintiff to recover. The defendant also requested the court to further instruct the jury, that the negligence of defendant will not be presumed from the mere fact that the fire was caused by sparks escaping from defendant’s engine.
On the question presented by these charges, the authorities are in manifest and decided conflict.
Many of them, probably the greater number, maintain tbe rule, that an inference of negligence does not arise from the mere fact of fire being communicated by a passing locomotive, and that the onus is on the plaintiff to prove, in addition to the origin of the fire, some positive act of negligence on the part of defendant, or circumstances tending to [501] show a want of due care. The following authorities may be cited as sustaining this doctrine: Gandy v. Chic. & N. W. R. R. Co., 33 Iowa, 420; Phil. & Read. R. R. Co. v. Ferger, 73 Penn. St. 121; Ind. & Cin. R. R. Co. v. Paramore, 31 Ind. 143; McCaig v. Erie Railway Co., 9 Hun, 599; 1 Whart. Ev. § 360; 13 Amer. & Eng. R. R. Cases, note, 488. The most cogent reasons given for the support of this rule are, that a railroad company, which is authorized by law to operate its trains by steam, is not an insurer against accidents by fire, and is not liable for injuries caused by the use of fire in generating steam, if the right is exercised in a lawful manner, and with reasonable care and skill; and the owner of adjacent property assumes all risks incident to a lawful and proper use of the road; that negligence is the gist of the liability, without proof of which an action can hot be maintained; and by the general rule, in actions founded on negligence, the plaintiff must aver it, and the burden of proof rests upon him; and in no case does the mere fact of injury prove negligence.
The converse rule is, that proof of the mere fact that property was destroyed or damaged by fire, having escaped from a passing engine, is prima facie evidence of negligence in the construction and management of such engine, and casts on the defendant the burden to rebut the presumption. The following authorities may be cited as sustaining this rule: Bur. & Mo. R. R. Co. v. Westover, 4 Neb. 268; Carson v. Mil. & St. Paul Railway Co., 29 Minn. 12; Ill. Cen. R. R. Co. v. Mills, 42 Ill. 407; Coats v. Mo., Kan. & Tex. Railway Co., 61 Mo. 38; Burke v. L. & N. R. R. Co., 7 Heisk. 451; Case v. North Cen. Railway Co., 59 Bark 644; Spaulding v. C. & N. W. R’y Co., 30 Wis. 110; Sher. & Red. Neg. § 333; 38 Amer. Dec., note 71; 1 Thomp. on Neg. 153. These decisions base the rule mainly upon the necessity of the case. The argument is clearly and forcibly stated by Dixon, C. J. in Spaulding v. C. & N. W. Co., supra. After observing that it is the duty of railroad companies to employ all due care and skill in the construction of their engines, to prevent injury to the property of others by the escape of fire therefrom, he says: “The reasons given for requiring the companies to show that this duty has been peformed on their part, are, that agents and employees of the road know, or are at least bound to know,-that the engine is properly equipped to prevent fire from escaping, and that they know whether any [502] mechanical contrivances were employed for that purpose, and if so, what was their character; whilst, on the other hand, persons not connected with the road, and who only see trains passing at a high rate of speed, have no such means of information, and the same is inaccessible to, and can not be obtained by them, without great trouble and expense.”
It is an exception to the general rule, that a mere damage or destruction by fire does not, of itself, authorize an inference of negligence. The soundness and justice of the exception, in cases of fire caused by steam-engines, may be rendered apparent by observing its qualification and operation. 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 powerful and dangerous agency of steam, are required by law to use due and reasonable care to prevent injury to the property of others; as has often been said, a high degree of care. Reasonable care, however, does not require the adoption of every new invention or 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 discharged this duty, they are not liable for accidental injuries caused by the escape of fire from their engines. The mere fact that a fire originated from sparks, emitted from an engine, is not sufficient to fasten a liability on the company, neither does the rule so operate. It is not a rule of liability, but of evidence. Though no mechanical contrivance has been invented, or is in use, which can effectually prevent the escape of fire from locomotives, at all times and under all circumstances, from which injury may result, experience has demonstrated that fire rarely escapes in such quantity or volume as to cause damage, when the engines are properly constructed, are supplied with the most improved appliances for preventing the escape of fire, and are managed with care. On the advanced progress in mechanical appliances, and the practical demonstra[?]*?tion of their utility and efficiency, a reasonable 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 is not managed with care. "When the inference is repelled by proof of the proper construction of the engine, and use of the proper appliances and careful management, the plaintiff can not maintain the action, without making proof of other negligence or want of care. The extent of the rule is, that injury caused by fire escaping from an engine is a circumstance, from which the inference of negligence in construction and management of the engine may be reasonably drawn; but negligence in no other respect. It is the application of the general principle, that presumptive evidence is founded on the connection, which experience has demonstrated to exist, between the facts proved and the facts intended, to be proved. We think the rule, that the destruction or damage of property by fire escaping from a railroad engine raises an inference of negligence, consisting in a defect in its construction, or in the appliances used, or want of due care in its management, a sound and just rule, and, as thus limited and qualified, will more effectually accomplish the protection of property and the ends of the law.
The same observations apply to all the charges requested by defendant. On the assumption that the fire originated hom sparks emitted from the engine, they put on plaintiff the burden to show that the engine was not properly managed, or that the spark-arrester was not in good order, in view of the evidence that the spark-arresters nsed by defendant would last only from three to twelve months, and of the absence of proof that the particular engine had ever been inspected, and of the manner in which the engine was managed — facts peculiarly within the knowledge of defendant, with the means and opportunity of proof.
Affirmed.