MR. JUSTICE HOLLOWAY
delivered the opinion of the court.
The plaintiff Pure Oil Company owned a warehouse situated on the right of way and within ten feet of the industry track of the Chicago, Milwaukee & St. Paul Railway Company, in Lewistown. On April 15, 1913, the warehouse and its contents [270]*270were destroyed by fire, and this action was brought to recover damages.
The gravamen of the charge is that on and prior to April 15, 1913, the railway company negligently permitted combustible material to accumulate on its tracks, on either side thereof, for a distance of 100 feet, and adjacent to plaintiff’s warehouse on its right of way in Lewistown ■ that on the fifteenth day of April, 1913, it negligently permitted fire to escape from one of its locomotives operated by Engineer John McCullough, and that the fire so permitted to escape was communicated to the combustible material, and through it to the warehouse, causing the damage for which compensation is sought. The insurance company is interested in the cause of action to the extent of $4,000, the amount paid by it as insurance upon the property destroyed.
, For the purpose of this appeal it may be said that the answer consists of a general denial, an affirmative allegation that as lessee, plaintiff oil company had waived any claim for damages, and a plea of contributory negligence. Upon the affirmative matter there was issue by reply. The trial resulted in a verdict for plaintiffs against the railway company, which has appealed from an order denying it a new trial.
Though there are unnecessary allegations in the complaint, it is apparent that recovery is sought upon the statutory liability declared by section 4310, Revised Codes, and that the complaint does not state a cause of action upon any other theory. This .theory, to the exclusion of any other, is emphasized by instruction No. 1 given by the court without exception from either party.
Section 4310 above provides: “It shall be the duty of all railroad corporations or railroad companies operating any railroad within this state to keep their railroad track, on either side thereof, for a distance of one hundred feet, on each side of the track or roadbed, so far as it passes through any portion of this state, free from dead grass, weeds or any dangerous or combustible material; and any railroad company or corporation failing to keep its railroad track and each side thereof free as above [271]*271specified, shall be liable for any damage which may occur from fire emanating from operating such railroad, and a neglect to comply with the provisions of this section in keeping free any railroad track, and either side for a distance equal to the space of ground covered by the grant or right of way for the railroad corporation or company, shall be prima facie evidence of negligence on the part of any such railroad corporation or company. But no railroad corporation or company shall be required to keep free as above specified any land not a part of its right of way.”
It is urged upon us that the evidence is insufficient to sustain the verdict. The determination of this contention must of necessity depend upon the answer to the inquiry, What evidence is necessary to make out a case under the statute!
1. Plaintiff Pure Oil Company must show that the railway [1] company permitted combustible material to accumulate on its right of way within a distance of 100 feet on either side of its roadbed. This fact being shown, a prima facie case of negligence is established.
2. It must show that its property was destroyed by fire emanating from the operation of the railroad; and
3. The amount of its damages.
At first blush it would seem that proof of these facts is all [2] that the statute requires; but negligence never gives rise to a cause of action unless it is a proximate cause of injury (Cummings v. Reins Copper Co., 40 Mont. 599, 107 Pac. 904; Markinovich v. Northern Pac. Ry. Co., 55 Mont. 139, 174 Pac. 183); and, in view of this rule of universal recognition, the statute above was early construed to impose upon the plaintiff the additional burden of showing that the accumulated, combustible material was an agency through which the fire was communicated to plaintiff’s property; or, in other words, plaintiff was required to show that the negligence complained of was a proximate cause of his damage. (Diamond v. Northern Pac. R. Co., 6 Mont. 580, 13 Pac. 367; Spencer v. Montana Central Ry. Co., 11 Mont. 164, 27 Pac. 681.)
[272]*272Further than this, however, the statute does not go; and plaintiffs ’ allegation that fire was negligently permitted to escape from the locomotive was surplusage. If the plaintiffs [3] introduced evidence to show that the railway company permitted combustible material to accumulate on its right of way, in violation of the statute; that fire escaped from a locomotive used in the operation of the road; that the fire was communicated to the warehouse by reason of the presence of the combustible material — then it was altogether immaterial what degree of care was exercised in equipping or operating the locomotive. (Diamond v. Northern Pac. Ry. Co., above.) The locomotive in question may have been of the very best type, equipped with the most highly approved apparatus for preventing the escape of fire, and the engineer may have done all that science and skill could suggest in his management and operation of it, and still the railway company would be liable because of its negligence in permitting the combustible material to accumulate and become an active agency in communicating the fire to the adjacent property. The authorities supporting this rule are too numerous to be cited. They will be found in the notes to 11 R. C. L. 969, 2 Thompson’s Commentaries on the Law of Negligence, sec. 2270, and 8 White’s Supplement, sec. 2270; 33 Cyc. 1340. This disposes of the criticism of instruction 7, and the assignment that the court erred in refusing defendant’s offered instruction 3.
The supposititious case stated is only a prima facie case, and [4] may be overcome by evidence that the railway company exercised reasonable care to keep its right of way free from combustible material. This is the rule stated by the statute.
It is not necessary to determine whether plaintiffs made out [5] a prima fade case when they first rested. By failing to stand upon its motion for nonsuit, defendant assumed the risk that its own evidence might aid plaintiffs’ case. (Cain v. Gold Mt. Min. Co., 27 Mont. 529, 71 Pac. 1004; Yergy v. Helena L. & Ry. Co., 39 Mont. 213, 18 Ann. Cas. 1201, 102 Pac. 310.)
[273]*273We have for determination now the question, Is the evidence in its entirety sufficient to sustain the verdict? We answer this inquiry in the affirmative, and remark, in passing, that plaintiffs’ case was aided materially by evidence introduced by the defense. It is elementary that a defendant cannot predicate error -on the refusal of the court to grant a nonsuit if his own evidence thereafter produced cures the defects in plaintiff’s ease. (Yergy v. Helena L. & Ry. Co., above.)
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MR. JUSTICE HOLLOWAY
delivered the opinion of the court.
The plaintiff Pure Oil Company owned a warehouse situated on the right of way and within ten feet of the industry track of the Chicago, Milwaukee & St. Paul Railway Company, in Lewistown. On April 15, 1913, the warehouse and its contents [270]*270were destroyed by fire, and this action was brought to recover damages.
The gravamen of the charge is that on and prior to April 15, 1913, the railway company negligently permitted combustible material to accumulate on its tracks, on either side thereof, for a distance of 100 feet, and adjacent to plaintiff’s warehouse on its right of way in Lewistown ■ that on the fifteenth day of April, 1913, it negligently permitted fire to escape from one of its locomotives operated by Engineer John McCullough, and that the fire so permitted to escape was communicated to the combustible material, and through it to the warehouse, causing the damage for which compensation is sought. The insurance company is interested in the cause of action to the extent of $4,000, the amount paid by it as insurance upon the property destroyed.
, For the purpose of this appeal it may be said that the answer consists of a general denial, an affirmative allegation that as lessee, plaintiff oil company had waived any claim for damages, and a plea of contributory negligence. Upon the affirmative matter there was issue by reply. The trial resulted in a verdict for plaintiffs against the railway company, which has appealed from an order denying it a new trial.
Though there are unnecessary allegations in the complaint, it is apparent that recovery is sought upon the statutory liability declared by section 4310, Revised Codes, and that the complaint does not state a cause of action upon any other theory. This .theory, to the exclusion of any other, is emphasized by instruction No. 1 given by the court without exception from either party.
Section 4310 above provides: “It shall be the duty of all railroad corporations or railroad companies operating any railroad within this state to keep their railroad track, on either side thereof, for a distance of one hundred feet, on each side of the track or roadbed, so far as it passes through any portion of this state, free from dead grass, weeds or any dangerous or combustible material; and any railroad company or corporation failing to keep its railroad track and each side thereof free as above [271]*271specified, shall be liable for any damage which may occur from fire emanating from operating such railroad, and a neglect to comply with the provisions of this section in keeping free any railroad track, and either side for a distance equal to the space of ground covered by the grant or right of way for the railroad corporation or company, shall be prima facie evidence of negligence on the part of any such railroad corporation or company. But no railroad corporation or company shall be required to keep free as above specified any land not a part of its right of way.”
It is urged upon us that the evidence is insufficient to sustain the verdict. The determination of this contention must of necessity depend upon the answer to the inquiry, What evidence is necessary to make out a case under the statute!
1. Plaintiff Pure Oil Company must show that the railway [1] company permitted combustible material to accumulate on its right of way within a distance of 100 feet on either side of its roadbed. This fact being shown, a prima facie case of negligence is established.
2. It must show that its property was destroyed by fire emanating from the operation of the railroad; and
3. The amount of its damages.
At first blush it would seem that proof of these facts is all [2] that the statute requires; but negligence never gives rise to a cause of action unless it is a proximate cause of injury (Cummings v. Reins Copper Co., 40 Mont. 599, 107 Pac. 904; Markinovich v. Northern Pac. Ry. Co., 55 Mont. 139, 174 Pac. 183); and, in view of this rule of universal recognition, the statute above was early construed to impose upon the plaintiff the additional burden of showing that the accumulated, combustible material was an agency through which the fire was communicated to plaintiff’s property; or, in other words, plaintiff was required to show that the negligence complained of was a proximate cause of his damage. (Diamond v. Northern Pac. R. Co., 6 Mont. 580, 13 Pac. 367; Spencer v. Montana Central Ry. Co., 11 Mont. 164, 27 Pac. 681.)
[272]*272Further than this, however, the statute does not go; and plaintiffs ’ allegation that fire was negligently permitted to escape from the locomotive was surplusage. If the plaintiffs [3] introduced evidence to show that the railway company permitted combustible material to accumulate on its right of way, in violation of the statute; that fire escaped from a locomotive used in the operation of the road; that the fire was communicated to the warehouse by reason of the presence of the combustible material — then it was altogether immaterial what degree of care was exercised in equipping or operating the locomotive. (Diamond v. Northern Pac. Ry. Co., above.) The locomotive in question may have been of the very best type, equipped with the most highly approved apparatus for preventing the escape of fire, and the engineer may have done all that science and skill could suggest in his management and operation of it, and still the railway company would be liable because of its negligence in permitting the combustible material to accumulate and become an active agency in communicating the fire to the adjacent property. The authorities supporting this rule are too numerous to be cited. They will be found in the notes to 11 R. C. L. 969, 2 Thompson’s Commentaries on the Law of Negligence, sec. 2270, and 8 White’s Supplement, sec. 2270; 33 Cyc. 1340. This disposes of the criticism of instruction 7, and the assignment that the court erred in refusing defendant’s offered instruction 3.
The supposititious case stated is only a prima facie case, and [4] may be overcome by evidence that the railway company exercised reasonable care to keep its right of way free from combustible material. This is the rule stated by the statute.
It is not necessary to determine whether plaintiffs made out [5] a prima fade case when they first rested. By failing to stand upon its motion for nonsuit, defendant assumed the risk that its own evidence might aid plaintiffs’ case. (Cain v. Gold Mt. Min. Co., 27 Mont. 529, 71 Pac. 1004; Yergy v. Helena L. & Ry. Co., 39 Mont. 213, 18 Ann. Cas. 1201, 102 Pac. 310.)
[273]*273We have for determination now the question, Is the evidence in its entirety sufficient to sustain the verdict? We answer this inquiry in the affirmative, and remark, in passing, that plaintiffs’ case was aided materially by evidence introduced by the defense. It is elementary that a defendant cannot predicate error -on the refusal of the court to grant a nonsuit if his own evidence thereafter produced cures the defects in plaintiff’s ease. (Yergy v. Helena L. & Ry. Co., above.)
The evidence tends to prove these facts: About 5:30 o’clock on the afternoon of April 15, 1913, defendant’s locomotive, in charge of Engineer McCullough, was standing on .the industry track immediately back and west of the oil warehouse; that the fire was discovered burning over the area between the track and the warehouse, finally reaching the warehouse, and consuming it and its contents. Immediately after the fire, and after the locomotive was moved, a pile of hot ashes and live coals of fire was discovered on the industry track, in about the same location as that occupied by the locomotive. The ties on the track were burned at and about the place where the live coals were found. There was evidence that at the time of the fire, and for a considerable period prior thereto, combustible material, waste and debris had been suffered to accumulate on the track and right of way, and particularly upon the space between the industry track and the warehouse. The fact that the witness Bradley saw fire burning between the industry track and the warehouse is very conclusive evidence that combustible material of some character had accumulated on that intervening space and fed the fire. The live coals were west of the warehouse, and there was a strong wind blowing from the west at the time, which drove the fire toward and against the warehouse. No one saw the fire dropped from McCullough’s locomotive or saw it ignite the combustible material; but, notwithstanding these omissions, we think the evidence is sufficient to sustain a finding that the fire was dropped by the locomotive in question, and that it was communicated by means of this combustible material to the oil warehouse.
[274]*274Whjle it is necessary, in order to sustain this judgment, that [6] the record contain evidence tending to prove the presence of combustible material on the roadway and space intervening between it and the warehouse, the escape of fire from a locomotive used in the operation of the road, and communication of the fire through the agency of the combustible material to the warehouse, these facts may all be established by circumstantial evidence (11 R. C. L. 994) ; indeed, it is seldom possible to produce eye-witnesses to testify to them directly.
Plaintiffs produced evidence that defendant had suffered combustible material to accumulate on its industry track and on the space intervening between that track and the oil warehouse. From the position of McCullough’s locomotive at the time the fire was discovered, and the location of the live coals immediately after the locomotive was moved, the jury might legitimately infer that the coals were dropped by the locomotive. [7] “The origin of fire has generally been held sufficiently established hy inferences drawn from slight circumstantial evidence.” (Union Pac. Ry. Co. v. De Busk, 12 Colo. 294, 13 Am. St. Rep. 221, 3 L. R. A. 350, 20 Pac. 752; Beggs v. C. W. & M. R. Co., 75 Wis. 444, 44 N. W. 633; Abrams v. Seattle & M. Ry. Co., 27 Wash. 507, 68 Pac. 78, and numerous cases therein cited and reviewed.) This is likewise the effect of the holding in Marron v. Great Northern Ry. Co., 46 Mont. 593, 129 Pac. 1055. So, likewise, from the facts that combustible material was upon the ground between the industry track and the warehouse; that the wind was blowing-from the west; that the live coals were west of the warehouse; that the fire was seen burning between the industry track and the warehouse, running toward the east and toward the warehouse; and that the warehouse caught on the end next to the track — the jury might properly infer that the combustible material was the agency which communicated the fire from the coals to the warehouse.
Complaint is made that the court permitted certain witnesses to testify that other fires had been set on the railway right of way in the same neighborhood, about the same time, by other [275]*275locomotives operated by the defendant. No objection was [8] interposed to the question asked the witness Day. A party cannot sit by, without objection, speculate as to whether the evidence may not be favorable to him, and then move to strike it out when it appears to be prejudicial. (Yoder v. Reynolds, 28 Mont. 183, 72 Pac. 417.) But the evidence was competent, not for the purpose of showing negligence in the equipment or [9] operation of the locomotive in question, but as tending to prove that the defendant had permitted combustible material to accumulate on its right of way; for without the presence of combustible material it would have been impossible that the fires could have occurred. (Abrams v. Seattle & M. Ry. Co., above.) [10] If the evidence was competent upon any issue raised by the pleadings, it was not error to permit its introduction.
Neither instruction 4 nor 10 given by the court was applicable to the facts of this case. These instructions are to the effect that, if the plaintiffs had shown that the fire escaped from defendant’s locomotive, the burden was then cast upon the defendant to show that it did so without defendant’s fault or negligence. As we have heretofore observed, it was not necessary for plaintiffs to prove negligence in permitting the fire to escape from the locomotive, and, if defendant had proved conclusively that the fire escaped notwithstanding it exercised the highest degree of care, it would have constituted no defense.
The instructions referred to were therefore inore favorable to [11] defendant than to plaintiffs, and the error in giving them was without prejudice.
Instruction 12 refers to any locomotive of the defendant [12] company as the agency which permitted the fire to escape, and exception is taken to it on that account. It is argued that plaintiffs’ pleadings and proof had narrowed the issue to the particular locomotive operated by Engineer McCullough, and with this we agree; but the evidence showed, and the jury must have understood, that no other locomotive was upon the industry track on the day of the fire, and therefore the indefinite reference could not have applied to any other locomotive. It [276]*276is said also that this instruction ignores plaintiffs’ theory “that the fire was communicated from combustible material unlaw-, fully on the right of way,” but in this counsel is in error.
Rehearing denied November 6, 1919.
The court by instruction 7 had fully and fairly stated to the [13] j jury the facts which it was necessary for plaintiffs to establish in order to make out their case, and these facts it was not necessary to repeat. The charge is to be considered as a whole, and the several instructions reconciled if possible.
The defense of contributory negligence and the defense that the oil company had by its lease relieved the defendant from [14] the payment of compensation for loss occasioned by fire were properly submitted to the jury, and the general verdict is, in effect, a finding against the defendant upon each of these defenses.
We find no reversible error in the record. The order is affirmed.
Affirmed.
Mr. Chief Justice Brantly and Associate Justices Hurly, Patten and Cooper concur.