The opinion of the court was delivered by
Valentine, J.:
[55]*55
1. Evidence; proof of negligence.
2 Evidence; competency. [54]*54This was an action brought by Thurston Chase as plaintiff to recover damages from the St. Joseph & Denver City Railroad company for negligently setting fire to [55]*55and burning certain hay, etc., belonging to the said plaintiff. The plaintiff seems to have tried the case in the court below upon the theory that the fire was caused by sparks emitted from a locomotive of the defendant; that the smoke-stacks and spark-arresters of said locomotive were old, and not in good condition; that the locomotive was a coal-burner in which it was not safe to burn wood, but that wood was actually burned therein, whereby sparks escaped and caused the fire and the damage complained of. Under this theory we think it was competent for the plaintiff to introduce evidence on the trial tending to show that other fires were Caused by sparks escaping from the defendant’s engines immediately before or immediately after the time that this particular fire occurred. (Sheldon v. Hudson River Rld. Co., 14 N. Y., 218, 222; Field v. N. Y. Cent. Rld. Co., 32 N. Y., 339, 346. See also in this connection Huyett v. Phil. & Read. Rld., 23 Penn. St., 373; Piggott v. Eastern Counties Rld. Co., 3 C. B., (54 Eng. C. L.,) 229; Ill. Cent. Rld. Co. v. Mills, 42 Ill., 407; Ellis v. P. & R. Rld. Co., 2 Ire., (N. C.,) 138; U. P. Rld. Co. v. Hand, 7 Kas., 389.) Such evidence would clearly'tend to show that the defendant’s engines were not in proper condition for arresting sparks — either that they were not properly constructed, or that they were out of repair. It was shown by other evidence, and admitted, that all the defendant’s engines were coal-burners, •and it was also shown “that sparks do not escape from - coal-burning engines when burning coal to amount to anything.” And as all the engines belonging to the defend-an^ were coal-burners it was competent for the plaintiff (a stranger to the company) to show that the defendant was burning wood in all its engines in general, without showing more particularly that wood was burned in the particular engine which caused the fire; for such evidence would clearly tend to show that the defendant was burning wood in this particular engine. This kind of evidence would often be the best kind that a stranger to the company could produce, for it is not probable that strangers could distinguish [56]*56with any degree of accuracy or certainty between the different engines of the company, and a stranger to the company should not be compelled to rely upon the evidence of the employees of the company alone. If it was more dangerous, as it would seem from the evidence, to burn wood in_a coal-burner than to burn coal therein, then this kind of evidence would be relevant, as tending to show negligence. But if not more dangerous, then the evidence could do no substantial harm to any one. All that we wish now to decide is, that the court below did not err by admitting said evidence, or if so that the error will not require a reversal of the judgment.
3. Instructions, acts and admissions. The charge of the court to the jury, that if the defendant changed the smoke-stack of the engine that caused the fire after the fire occurred, because the smoke-stack was detective, or tor greater satety, the jury might consider this fact in determining whether the engine was in proper condition or not, was not erroneous as a legal proposition; and there was sufficient evidence-upon this subject to authorize such an instruction. The chapge for such a reason was a virtual admission of the company that the smoke-stack was not in good condition. The court possibly however gave too much prominence to a slight circumstance, such as this was.
4. Negligence. Use of one's own property. It was not negligence per se for the plaintiff to stack his hay on a newly-mown meadow, thirty rods from, the defend-, ant’s railroad. (Cooper v. Champ. Trans. Co., 1 Denio, 91,99; Fero v. Buffalo Rld. Co., 22 N. Y., 209; Kellogg v. C. & N. W. Rld. Co., 26 Wis., 223.) A man who uses his own property lawfully is seldom negligent simply because he has not provided against the negligence of others. He is generally not bound to anticipate the negligence of others. The question of whether the plaintiff was negligent in this respect or not was properly submitted to the jury, (U. P. Rly. Co. v. Rollins, 5 Kas., 181,) and the jury found as a question of fact that he was not negligent. These [57]*57remarks will also apply to the plaintiff’s hay-rack'and hay-rake.
5. Changing instructions asked. The defendant certainly has no reason to complain on account of the change made by the court to the fourth instruction asked for by the defendant. The defendant demanded a special verdict, and then asked this instruction, which would apply only to a general verdict. The court changed it so as to make it apply to the special verdict. The court might without committing error have refused the instruction entirely. The court was not bound to change the instruction so as to make it apply to a special verdict.
6. Findings; relevancy. The fourth, fifth and sixth findings of the jury were not irrelevant or immaterial; but if they were, what harm can ke Jone by irrelevant or immaterial findings? We think none. There was certainly some evidence which sustained these findings.
7. Damages by fire; remote injury; cause of action. The railroad company not only claims thát the danger from said sparks was so direct, proximate, immediate and imminent ^at ^ WaS negligence Per se f<>r plaintiff to stack his hay and leave his rack and rake so near the railroad as to be in danger from such sparks, but the company also claims that the damage to plaintiff’s said property was so indirect, remote, and not to be expected, that such damage cannot constitute the basis of a cause of action. It is true that the sparks from the defendant’s engine did not directly set fire to the plaintiff’s said property; but they set fire to certain stubs of grass where the grass had been previously mown, and the fire thus kindled spread until it reached the plaintiff’s said property thirty rods distant, and there consumed the property. And it is also true that the stubs of grass, and the ground over which the fire spread, as well as the hay, the rack, and the rake, for which the plaintiff sued, all belonged to the plaintiff. It was therefore one fire only which was kindled and did all the damage on the plaintiff’s premises. We therefore think that the damage was not too remote to constitute the basis of a cause of action: [58]*58Field v. N. Y. Cent. Rld. Co., 32 N. Y., 339; Kellogg v. C.& N. W. Rld., 26 Wis., 223; Perly v. Eastern Rld. Co., 98 Mass., 414; Hart v. Western Rld. Co., 13 Metc., (Mass.,) 99 and authorities cited by counsel for defendant in error.
6. Verdicts; weight of evidence; jury trials. We cannot reverse the judgment in this case on the ground that the verdict is not sustained by sufficient evidence. Upon some of the essential facts in the case, the weight of the evidence may seem to be against the verdiet. But this is not enough to authorize a reversal of the judgment.
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The opinion of the court was delivered by
Valentine, J.:
[55]*55
1. Evidence; proof of negligence.
2 Evidence; competency. [54]*54This was an action brought by Thurston Chase as plaintiff to recover damages from the St. Joseph & Denver City Railroad company for negligently setting fire to [55]*55and burning certain hay, etc., belonging to the said plaintiff. The plaintiff seems to have tried the case in the court below upon the theory that the fire was caused by sparks emitted from a locomotive of the defendant; that the smoke-stacks and spark-arresters of said locomotive were old, and not in good condition; that the locomotive was a coal-burner in which it was not safe to burn wood, but that wood was actually burned therein, whereby sparks escaped and caused the fire and the damage complained of. Under this theory we think it was competent for the plaintiff to introduce evidence on the trial tending to show that other fires were Caused by sparks escaping from the defendant’s engines immediately before or immediately after the time that this particular fire occurred. (Sheldon v. Hudson River Rld. Co., 14 N. Y., 218, 222; Field v. N. Y. Cent. Rld. Co., 32 N. Y., 339, 346. See also in this connection Huyett v. Phil. & Read. Rld., 23 Penn. St., 373; Piggott v. Eastern Counties Rld. Co., 3 C. B., (54 Eng. C. L.,) 229; Ill. Cent. Rld. Co. v. Mills, 42 Ill., 407; Ellis v. P. & R. Rld. Co., 2 Ire., (N. C.,) 138; U. P. Rld. Co. v. Hand, 7 Kas., 389.) Such evidence would clearly'tend to show that the defendant’s engines were not in proper condition for arresting sparks — either that they were not properly constructed, or that they were out of repair. It was shown by other evidence, and admitted, that all the defendant’s engines were coal-burners, •and it was also shown “that sparks do not escape from - coal-burning engines when burning coal to amount to anything.” And as all the engines belonging to the defend-an^ were coal-burners it was competent for the plaintiff (a stranger to the company) to show that the defendant was burning wood in all its engines in general, without showing more particularly that wood was burned in the particular engine which caused the fire; for such evidence would clearly tend to show that the defendant was burning wood in this particular engine. This kind of evidence would often be the best kind that a stranger to the company could produce, for it is not probable that strangers could distinguish [56]*56with any degree of accuracy or certainty between the different engines of the company, and a stranger to the company should not be compelled to rely upon the evidence of the employees of the company alone. If it was more dangerous, as it would seem from the evidence, to burn wood in_a coal-burner than to burn coal therein, then this kind of evidence would be relevant, as tending to show negligence. But if not more dangerous, then the evidence could do no substantial harm to any one. All that we wish now to decide is, that the court below did not err by admitting said evidence, or if so that the error will not require a reversal of the judgment.
3. Instructions, acts and admissions. The charge of the court to the jury, that if the defendant changed the smoke-stack of the engine that caused the fire after the fire occurred, because the smoke-stack was detective, or tor greater satety, the jury might consider this fact in determining whether the engine was in proper condition or not, was not erroneous as a legal proposition; and there was sufficient evidence-upon this subject to authorize such an instruction. The chapge for such a reason was a virtual admission of the company that the smoke-stack was not in good condition. The court possibly however gave too much prominence to a slight circumstance, such as this was.
4. Negligence. Use of one's own property. It was not negligence per se for the plaintiff to stack his hay on a newly-mown meadow, thirty rods from, the defend-, ant’s railroad. (Cooper v. Champ. Trans. Co., 1 Denio, 91,99; Fero v. Buffalo Rld. Co., 22 N. Y., 209; Kellogg v. C. & N. W. Rld. Co., 26 Wis., 223.) A man who uses his own property lawfully is seldom negligent simply because he has not provided against the negligence of others. He is generally not bound to anticipate the negligence of others. The question of whether the plaintiff was negligent in this respect or not was properly submitted to the jury, (U. P. Rly. Co. v. Rollins, 5 Kas., 181,) and the jury found as a question of fact that he was not negligent. These [57]*57remarks will also apply to the plaintiff’s hay-rack'and hay-rake.
5. Changing instructions asked. The defendant certainly has no reason to complain on account of the change made by the court to the fourth instruction asked for by the defendant. The defendant demanded a special verdict, and then asked this instruction, which would apply only to a general verdict. The court changed it so as to make it apply to the special verdict. The court might without committing error have refused the instruction entirely. The court was not bound to change the instruction so as to make it apply to a special verdict.
6. Findings; relevancy. The fourth, fifth and sixth findings of the jury were not irrelevant or immaterial; but if they were, what harm can ke Jone by irrelevant or immaterial findings? We think none. There was certainly some evidence which sustained these findings.
7. Damages by fire; remote injury; cause of action. The railroad company not only claims thát the danger from said sparks was so direct, proximate, immediate and imminent ^at ^ WaS negligence Per se f<>r plaintiff to stack his hay and leave his rack and rake so near the railroad as to be in danger from such sparks, but the company also claims that the damage to plaintiff’s said property was so indirect, remote, and not to be expected, that such damage cannot constitute the basis of a cause of action. It is true that the sparks from the defendant’s engine did not directly set fire to the plaintiff’s said property; but they set fire to certain stubs of grass where the grass had been previously mown, and the fire thus kindled spread until it reached the plaintiff’s said property thirty rods distant, and there consumed the property. And it is also true that the stubs of grass, and the ground over which the fire spread, as well as the hay, the rack, and the rake, for which the plaintiff sued, all belonged to the plaintiff. It was therefore one fire only which was kindled and did all the damage on the plaintiff’s premises. We therefore think that the damage was not too remote to constitute the basis of a cause of action: [58]*58Field v. N. Y. Cent. Rld. Co., 32 N. Y., 339; Kellogg v. C.& N. W. Rld., 26 Wis., 223; Perly v. Eastern Rld. Co., 98 Mass., 414; Hart v. Western Rld. Co., 13 Metc., (Mass.,) 99 and authorities cited by counsel for defendant in error.
6. Verdicts; weight of evidence; jury trials. We cannot reverse the judgment in this case on the ground that the verdict is not sustained by sufficient evidence. Upon some of the essential facts in the case, the weight of the evidence may seem to be against the verdiet. But this is not enough to authorize a reversal of the judgment. There was some evidence to sustain every essential fact. The fire was caused by the defendant’s engines. The engines were all coal-burners. It is more dangerous to bum wood in coal-burners than to burn coal therein. The net-work fire-arresters of a wood-burner have finer meshes than the net-work fire-arresters of a coal-burner. There was direct and positive evidence that wood was burned in the very engine which caused the fire; and this wood was put in the engine just before the engine reached the plaintiff’s premises, and just before-this fire occurred; and there was half a cord of wood on the engine at that time. Fires were frequently caused by the defendant’s engines; and generally they were caused by an engine that passed about the time that this engine should have passed. What should be inferred from this fact? These fires were caused by large sparks escaping from the engine. Sparks do not escape from a coal-burner in good condition and properly managed to amount to anything. This fire was caused in October; and the next February the smoke-stack of the engine that caused the fire was changed “because the old stack was worn out,” etc. A great deal of this evidence was rebutted by other evidence, and perhaps in some instances the weight of the evidence was with the defendant; but the jury found against the defendant on this conflicting evidence. And so long as cases are submitted to juries so long some respect must be given to their verdicts. And when the court below has sustained the verdict of the jury, as in this case, such action of [59]*59the court adds great force and weight to the verdict of the jury. The judgment of the court beíow must be affirmed.
All the Justices concurring.