Of course, it is for him who complains of the injury to satisfy the jury that the fire originated from the thresher engine; but, the origin of the fire being proved, it would seem that sufficient had been shown to put upon the defendant the burden of proof of exercise of ordinary care under the circumstances of the case, and so it has been held; but in other Courts it has been held that plaintiff must take the affirmative and show what precautions defendant might and ought to have taken, but did not.2 At all events, the plaintiff may safely rest when he has shown that the fire occurred by sparks escaping from the engine, and that other engines are in common use, so constructed and run that sparks from them do not escape, and that the particular engine did not retain its sparks as others in common use did; and having made such a showing, the defendant would be put upon his proofs that his engine, was properly constructed, with the common appliances in use to guard against fire, and that it had been operated and guarded in such a manner as a man of ordinary prudence and intelligence, under the circumstances, would exercise in guarding his own property of a like character from injury.3

§ 64. Proprietor of steam-thresher not an insurer.-Notwithstanding the rule that he who employs in his business an element of danger must be held to strict care, and the use of all available means and appliances to avoid doing injury to others, his responsibility should not be so far extended as to deprive him of the right to make use of such machines as steam-threshers, so long as he does so in such manner as to maintain the proper balance between danger and benefit to the public.

There are no circumstances in life which are free from danger, and a member of the body politic can hardly so conduct his business as that a possibility of injury to others may not result therefrom; but it would manifestly be wrong to therefore pre

1 Sheldon v. Hudson R. R. 29 Barb. 226; Bass v. Chicago R. R. 28 Ill. 9; Illinois C. R. R. v. Mills, 42 Ill. 407; Piggott v. Eastern R. R. 3 C. B. 229; Fitch v. Pacific R. R. 45 Mo. 322.

2 Hull v. Sacramento R. R. Co. 14 Cal. 387; Gandy v. C. R. R. Co. 30 Iowa, 419. 8 Field v. N. Y. C. R. R. 32 N. Y. 339. It is negligence to run an engine after it has been found to scatter sparks. (C. & G. R. R. v. Cleveland, 42 Vt. 449.) And so it is to open the grates and let out upon the dry ground coal and cinders. (Martin v. Weston R. R. 23 Wis. 437.)

vent individuals from acting at all, and the same right which the citizen has to use fire for household purposes exists in his favor to use the same element as a labor power in machines such as those indicated, subject, however, to such duty as to care and providence as common prudence dictates. And, indeed, to limit the use, or extend the liability further, would go very far toward rendering the possession of property rather to be avoided than desired, and would tend to discourage any attempt to utilize the power of the elements, because of the danger involved.

The proprietor and manager of machines, in themselves dangerous, takes upon himself grave risks, hazards his life and capital, and the public has an interest in his protection from extraordinary responsibilities. All that can reasonably be expected of any owner is so to manage and use his property as carefully to avoid any injury to the property or rights of others, and no one can have any ground upon which to base a complaint of such use and management, unless thereby he can show himself to have been injured in his property or his rights.1

§ 65. Common-law rule as to liability for fires caused by locomotives. The general rule from the English authorities, where loss has occurred by fire resulting from sparks dropped by a passing locomotive, has been that the fact of the fire occurring in such manner was prima facie evidence of negligence on the part of the company, and that to avoid liability they must show that they had availed themselves of the best appliances in use, and had exercised due care to prevent the accident.2

1 Keefe v. R. R. Co. Sup. Court, Minn. Jan'y, 1875; Whirly v. Whitman, 1 Head, 610; Lynch v. Newdin, 1 Q. B. 29; Birge v. Gardiner, 19 Conn. 507.

2 Such, at all events, appear to be the principles of the earlier cases. Piggott v. Eastern Counties R. Co. 3 C. B. 229.-This case, decided in 1846, has since been so often quoted and commented upon in England and America as to have acquired in both countries an especial value. The language of the opinion, by Tindal, C. J., is: "The defendants are a company intrusted by the legislature with an agent, of an extremely dangerous and unruly character, for their own private and particular advantage; and the law requires of them that they shall, in the exercise of the rights and powers so conferred on them, adopt such precautions as may reasonably prevent damage to the property of third persons through or near which their railway passes. The evidence, in this case, was abundantly sufficient to show that the injury of which the plaintiff complains

The subject has been discussed at considerable length in the more recent English cases, and in them the general principles have been recognized that the mere fact of the company using fire as a means of locomotion, from which occasional fires will be communicated to property near the line of the road, makes the companies responsible for the damages caused thereby, and that they were so liable, where unable to show that all available means had been exhausted and all proper appliances used to prevent the occurrence of such accidents. In one case, the rule was carried so far as to declare that the company, availing itself of means of locomotion of such a character as necessarily to incur great risk of doing damage to others, must be deemed to have accepted the risk and assumed the liability. But, in the Exchequer Chamber, the rule has been so far modified as to admit that, the legislature having legalized this mode of locomotion, the companies could not be held liable without proof of some degree of neglect.2

§ 66. American rule as to fires from locomotives.—In the United States, railroad companies have been more favored

was caused by the emission of sparks or particles of ignited coke coming from one of the defendant's engines; and there was no proof of any precaution adopted by the company to avoid such a mischance. I therefore think the jury came to a right conclusion in finding that the company were guilty of negligence, and that the injury complained of was the result of such negligence. There are many old authorities to sustain this view; for instance, the case of Mitchel v. Alestree, 1 Vent. 295, for an injury resulting to the plaintiff from the defendant's riding an unruly horse; that of Bayntine v. Sharp, 1 Lutw. 90, for permitting a mad bull to be at large; and that of Smith v. Pelah, 3 Stra. 1264, for allowing a dog, known to be accustomed to bite, to go unmuzzled. The precautions suggested by the witnesses, called for the plaintiff in this case, may be compared to the muzzle in the case last referred to. The case of Beauleau v. Fingham, in the Year Books, p. 2, H. IV, fol. 18, pl. 5, comes near to this. There the defendant was charged, in case, for so negligently keeping his fire as to occasion the destruction of the plaintiff's property adjoining. The duty there alleged was, 'quare cum secundum legem et consultudiem regni nostri Angliæ hactenas obtentam, quod quilibet de codem regno ignem suum salvo et secure custodiat, et custodiæ, teneatur, ne per ignem suum damnum aliquod vicinis suis eveniat.' "' Although in Aldridge v. G. W. R. Co. 3 M. & G. 515, where a loss was shown to have occurred by fire set by sparks falling from an crdinary engine, run in an ordinary manner, it was held that the facts did not necessarily show either negligence or no negligence; that the fact should be left to the jury.

1 Vaughn e. Taffvale Railw. 3 H. & N. 743.

2 Ibid; S. C. in Exchequer Chan. 5 H. & N. 674; King v. Pease, 4 B. & Ad. 30.

than in England, and the rule of their liability, for damage done by fires caused by sparks from locomotives, is much more advantageous to the companies than it has been in the mother country. The reason of this difference is probably in the comparatively high value of money in America, and the consequent difficulty of inducing the owners of capital to employ it upon works of the magnitude of the construction and equipment of railroads, but in the creation and working of which the public is so far interested as to induce applications of the law as favorable to the companies as is compatible with safety to the public.

From whatever cause it may result, the difference is manifest, and in this country it seems to have been assumed that the business of railways, on which steam locomotives are used, being lawful, no presumption of negligence arises from the fact that sparks from the engines set fire to adjacent property.1 And from a majority of the later cases it appears that to entitle a plaintiff to recover of a railroad company damages on account of fire resulting from sparks emitted from one of its engines, the negligence of the company in the premises must be shown, either directly or by circumstances tending to establish it; such as the absence or imperfect condition of a spark-arrester, the excessive amount of steam, an unlawful rate of speed, or the like. The mere fact that the fire was occasioned by the

1 Rood v. N. Y. & E. R. R. 18 Barb. 80; Lyman v. Boston & W. Railway, 454; Commonwealth v. Metropolitan R. R.Co. 107 Mass. 236.

In some of the States the statutes specially provide as to where shall lie the burden of proof of negligence in such cases; but these statutes are, and the ruling on them, exceptional; as, for instance, Baltimore Etc. R. R. Co. v. Dorsey, 37 Md. 19. "Maryland Code, Art. 77, Sec. 1-making railroad companies responsible for injuries by fire from locomotives-construed to include a case of fire from cinders thrown from the engine by the company's servant in charge, and to lay upon the company the burden of disproving negligence." So in Chicago v. Quintance, 58 Ill. 389: “Under the Illinois Act of 1869-making the fact that an injury has been occasioned from sparks emitted from a locomotive while passing along the road, full prima facie evidence of negligence on the part of the company-it is no rebuttal to show that the engine was originally constructed with the best and most improved invention to prevent the escape of sparks. The law imposes the duty of constant vigilance to keep in repair." Under such a statute in Massachusetts, where the sparks from the engine communicated fire to a shop, and the wind drove the sparks from the shop sixty feet across the street, and set fire to a house, it was held that this second fire must be regarded as "communicated" by the company's engine, within the statute. (Hart v. Western Railway, 13 Met. 99; and see also Fitchburg R. R. Co. v. Charlestown Mutual Ins. Co. 7 Gray, 64.)

sparks does not make a prima facie case against the company.1 But in some of the State Courts it has been held that when the origin of the fire has been shown to be from sparks dropped by a locomotive, the railroad company must show that they used all necessary precautions to avoid doing such mischief.2

§ 67. Special laws as to fire from locomotives vary the general rule in some of the States, and conform to the principles of the English law, by holding the companies to the proposition that, in accepting the use of an agency so dangerous as a locomotive, they must be deemed as accepting all losses which may occur by fire from sparks falling from their engines, unless they can show due care in guarding against the danger, in some instances the State laws go even further, and, as in Massachusetts, make the railway companies liable for all damage done in this way. It has, however, been held that such statutory liability only extends to property of a permanent nature, and upon which an insurance may be effected; and that for injuries of this kind to other property the company can only be held liable where there has been on their part negligence, unskillfulness, or imprudence in running and conducting their engines.3

1 Gandy v. Chicago R. R. Co. 30 Iowa, 420; 1 Redfield on Railways, 452. "It seems to have been assumed, in this country, that, the business of railways being lawful, no presumption of negligence arises from the fact of fire being communicated by their engines." It is to be observed that a tendency to establish a standard of care on the part of the railroad companies, less high than that which has generally been esteemed just, is becoming manifest in some of the Courts, and markedly in those of the State of New York. Indirectly, the power of great corporations manifests itself by the ability of learned counsel which it can command, and the influence of arguments which such counsel can bring to bear upon the Courts; it is, however, to be hoped that such effects are to be but temporary, and that the safer rules will be found to be those advocated by the leading law journals, holding the companies to such reasonable care as the nature of their business makes requisite, to guard the community from danger. (McGrath v. N. Y. C. & R. R. Co. 59 N. Y. 468; Albany L. J. Jan. 15th, 1876, p. 36.)

2 Bass v. Chicago R. R. Co. 28 Ill. 9; I. C. R. R. Co. v. Mills, 42 Ill. 407; Fitch v. Pacific R. R. Co. 45 Mo. 322; Bedford v. Hanibal R. R. Co. 46 Mo. 456; Spaulding v. Chicago R. R. Co. 30 Wis. 110; Case v. Northern Central R. R. Co. 59 Barb. 644.

8 Chapman v. Atlantic & S. L. R. R. Co. 37 Me. 92, which was an action for damages by fire, caused by sparks from a passing locomotive to a lot of posts piled up near the railroad, upon a permission to put them there by the owner of the land. It was held that the company was not liable, under the statute, for loss of such property, and that plaintiff, to recover, must show negligence.