testified that the engine was equipped with the most approved kind of spark arresting device, and that the same was in good condition, plaintiff was entitled to show in rebuttal of such testimony that on the same day ten fires were caused by sparks from the same engine within two miles of plaintiff's property and by the testimony of experts that such fact would indicate that the spark arrester was not in good condition.

[Ed. Note. For cases in point, see vol. 41, Cent. Dig. Railroads, §§ 1719-1723.]

2. SAME-ACTION UNDER OHIO STATUTE-BURDEN AND MEASURE OF PROOF.

Under the provision of Rev. St. Ohio 1906, § 3365-6, which makes the fact that a fire was set to property adjacent to a railroad by sparks escaping from a locomotive prima facie proof of the railroad company's negligence, in an action to recover for the loss of such property, the company is not required in order to overcome such prima facie case to produce a preponderance of the evidence bearing on the question of negligence, but it is sufficient if it produce enough to counterbalance that by which the prima facie case is made out, the ground of recovery under the statute as under the common law being negligence the burden of proving which rests upon the plaintiff.

[Ed. Note.-For cases in point, see vol. 41, Cent. Dig. Railroads, S$ 731, 1709-1716.]

Error to the Circuit Court of the United States for the Northern District of Ohio.

This was an action brought by the defendant in error against the plaintiff in error to recover damages for the destruction by fire of the plaintiff's flouring mill and contents at Venedocia, Ohio. The petition is drawn under section 3365-6 Rev. St. Ohio 1906, and alleges that the fire which destroyed the mill was caused by sparks emitted by a locomotive drawing a train of freight cars on defendant's railway. The answer was a general denial, coupled with special averments that the locomotive in question was equipped as required by the statute, and carefully operated by skillful and competent employés. At the close of all the evidence the plaintiff in error moved for a peremptory instruction for a verdict in its favor. This motion was overruled, and this has been assigned as error. The case was then submitted to a jury, who were required to answer certain interrogatories propounded by the court. These interrogatories and the answers of the jury were as follows: By the Court: Gentlemen of the jury, I am asked to submit to you certain questions, which I do, and which you will answer, as indicated to you by the court:

(1) "Do you find that the fire which consumed the plaintiff's property originated from a spark emitted by one of defendant's locomotives?" That question you will answer, and by your foreman sign.

(2) "If you answer interrogatory No. 1 in the affirmative, do you find that the locomotive which set said fire was engine 66, attached to defendant's through freight train No. 42?" That will be answered similarly.

(3) "Do you find that said engine 66 was at the time of the fire equipped with a spark arresting device of the best and most effective pattern known or in use at the date of said fire?" You must answer that question, although it is not couched in the language which the law provides shall be descriptive of such a spark arrester."

(4) "Do you find that the said spark arresting device on said engine was at the time of the fire in good repair?" You may answer.

(5) "Do you find that the defendant's employés in charge of and operating said engine at the time of the fire were competent and skillful?" You will

answer.

(6) "Do you find that the defendant's said employés in charge of said engine at the time of the fire were at such time operating the engine in a careful manner?" All of these questions, gentlemen, you may answer according to the fact.

Clarence Brown, for plaintiff in error.

O. S. Brumback and H. L. Conn, for defendant in error. Before LURTON, SEVERENS, and RICHARDS, Circuit Judges. LURTON, Circuit Judge, after making the foregoing statement, announced the opinion of the court.

In respect of the error assigned upon the refusal of the court to instruct a verdict for the plaintiff in error, it is only necessary to say that a careful examination of the record convinces us that there was material evidence upon which the jury might find as they did; that the fire which consumed plaintiff's mill was started by sparks emitted from a locomotive in operation upon the defendant's railway. Under the Ohio statute, which will be later considered, the effect of proof that the fire was started by sparks from a passing engine was to make that fact prima facie evidence that the escape of sparks was due to negligence and the burden was thus cast upon the defendant to rebut or counterbalance the presumption. In view of the finding by the jury that the spark arrester was of the best and most effective make and that the servants of the company operating the engine, efficient and skillful, we need not discuss either of those matters, for the refusal to instruct the jury to find for the plaintiff on those parts of the case did no harm. There remains then, only the question of whether this spark arresting device was in good condition upon the day when this fire was started. The jury found that it was not, and we are not at all disposed to think that there was not evidence sufficient to carry that question to the jury. That there was substantial, uncontradicted evidence that the netting of this particular engine had been replaced by new netting 30 days before the fire, and that the average life of such netting was from 6 to 18 months, must be conceded.

The servants of the railroad company also testified that this netting was inspected on the night before the fire, and again within one-half hour after the fire, and found to be in good condition. There was also uncontradicted evidence from competent experts that no spark arresting device will prevent the escape of all sparks and at the same time leave draft enough to operate the engine. To rebut this evidence of good repair the plaintiff relied, first, upon evidence tending to show that no less than 10 fires in grass and hay and stubble had been started by this very engine on the day in question within two miles of plaintiff's mill. There was also expert evidence to the effect that the fact that the same engine started 10 fires within two miles upon the same day and trip would indicate something wrong with the arrester. This testimony was admitted over the objection of the defendant in error, but we think it was competent to go to the jury as to the question of the condition of the arrester. Peck v. N. Y. C. R. R., 165 N. Y. 347, 59 N. E. 206. The jury were not bound to accept the evidence of the inspector. and other servants of the defendant as to the condition of the arrester if there was evidence tending to show that the sparks actually emitted in size and number were not such as could be anticipated if the condition of the arrester was

as testified to. Karsen v. M. & St. P. Ry., 29 Minn. 12, 16, 11 N. W. 122; Carter v. Penn. R. R. Co., 120 Fed 663, 57 C. C. A. 125; Babcock v. C. & N. Ry., 62 Iowa, 593–597, 13 N. W. 740, 17 N. W. 909.

There remains the question as to whether the court erred in instructing the jury that the defendant could only escape liability if they should find that the plaintiff's mill had been burned by sparks from a passing engine by establishing by a "preponderance" of the evidence that its engine was provided with the best and most effective spark arrester, that it was in good condition, and that its engine was in care of competent and skillful men. The question is whether under the Ohio statute the prima facie case of negligence made by evidence that a fire was set by escaping sparks can only be rebutted by a preponderance of the evidence bearing upon the subject of negligence. At the common law the ground upon which the owner of the property consumed by fire, started upon or suffered to escape from the premises of another, could recover for such loss was negligence. This rule requiring the plaintiff to affirmatively show that the fire by which he suffered had resulted from a negligent act of the defendant, applied also to fires started by escaping sparks from locomotives of railway companies lawfully using such locomotives in the operation of their railways. Garrett v. Southern Railway, 101 Fed. 102, 41 C. C. A. 237, 49 L. R. A. 645; Cincinnati Railway v. South Fork Coal Co. (C. C. A.) 139 Fed. 528-531; Shearman & Redfield on Negligence, §§ 655-666; St. L. Ry. Co. v. Mathews, 165 U. S. 1, 5, 15, 17 Sup. Ct. 243, 41 L. Ed. 611. There has always existed sharp conflict between decisions of eminent courts as to whether evidence that a fire was started by escaping sparks constituted, without more, a prima facie case of negligence. Upon the affirmative of this question was such cases as McCullen v. C. & N. W. R. R., 101 Fed. 66, 41 C. C. A. 365, 49 L. R. A. 642; Spaulding v. C. & N. W. R. R., 30 Wis. 110, 11 Am. Rep. 550.

In which case the Wisconsin court said:

"Some fire under all circumstances, and under even the best conditions of the engine to prevent it, will sometimes escape. The presumption, therefore, of negligence or the want of proper equipments, 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 compelling 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. Hence, evidence showing that the engines passing over a road were properly constructed and equipped, and were subjected to the vigilant and careful inspection of a competent and skillful person as often as once in two days, and found to be in proper order, would seem to satisfy the requirements of the rule."

See, also, Menominee River Sash & Door Co. v. Milwaukee & Northern R. Co., 91 Wis. 459-460, 65 N. W. 176.

Upon the other hand there are many cases which seem to rest upon a more logical basis in holding that the gravamen of an action for loss of property by fire communicated by sparks, is negligence, and that inasmuch as a railway company may lawfully use locomotives it

can not be made liable for a loss from sparks emitted, unless the plaintiff shows such sparks to have been negligently emitted, the burden of showing negligence being always upon him who affirms it. Henderson v. Railway Co., 144 Pa. 461, 475, 476, 22 Atl. 851, 16 L. R. A. 299, 27 Am. St. Rep. 652; Flinn v. N. Y. C., etc., R. R., 142 N. Y. 11, 19, 36 N. E. 1046. This was the view entertained by this court in a case originating in Tennessee, where there was no statute. Garrett v. Southern Ry., 101 Fed. 102, 41 C. C. A. 237, 49 L. R. A. 645. To the same effect are: Burroughs v. Housatonic Rd., 15 Conn. 124, 38 Am. Dec. 64; Gandy v. Chicago N. W. Rd., 30 Iowa, 420, 6 Am. Rep. 682.

There is a substantial agreement in all the cases, however, in holding that very slight evidence, such as proof that the sparks were of an unusual character in size, or in number, or that an unusual number of fires had been caused by sparks immediately before the fire in question, or that the defendant had been negligent in leaving upon its premises, in a very dry season, inflammable material, liable to be set on fire by the small sparks which inevitably escape under the most ordinary precautions, is enough to make a prima facie case of negligence demanding evidence of due care in rebuttal. Types of such cases appear in Railway Co. v. Richardson, 91 U. S. 454, 23 L. Ed. 356; Flinn v. N. Y. C. & C. R. R., 142 N. Y. 11, 36 N. E. 1046; Smith v. London, etc., R. R., 6 L. R. C. P. Cases 14; Peck v. N. Y. C. R. R., 165 N. Y. 347, 59 N. E. 206; Burke v. Railroad, 7 Heisk. (Tenn.) 451, 19 Am. Rep. 618; Huyett v. Railroad, 23 Pa. 373; Henderson v. Railroad, 144 Pa. 461, 477, 22 Atl. 851, 16 L. R. A. 299, 27 Am. St. Rep. 652. For the principles applicable to fires originating from collisions on a railroad track, see C. S. Ry. Co. v. South Fork Coal Co. (C. C. A.) 139 Fed. 528. In some of the states the statutes impose a liability unless the defendant company shall prove that the sparks escaped without negligence and that it was in all respects free from censure. Among the states having such statutes are Vermont, Michigan, Iowa, Louisiana. See Railroad v. Richardson, 91 U. S. 456, 23 L. Ed. 356; Ann Arbor Rd. Co. v. Fox, 92 Fed. 494, 34 C. C. A. 497; Small v C. R. I. Rd. Co., 50 Iowa 338.

In Ohio the statute makes a railway company absolutely liable, irrespective of negligence, for a fire started upon its own premises, in the operation of its railway, by which adjacent property is destroyed. By another provision of the same act, the fact that fire was communicated by sparks from an engine to property adjacent to the railway right of way is made prima facie evidence of negligence. In other states absolute liability for fire communicated by sparks is imposed regardless of any actual negligence. Among such statutes are those of Missouri, Massachusetts, Maine, New Hamphire, Connecticut, Colorado, South Carolina. For the terms and dates of these statutes the very elaborate opinion of Justice Gray in St. Louis, etc., Ry. Co. v. Mathews, 165 U. S. 1, 17 Sup. Ct. 243, 41 L. Ed. 611, in which the constitutionality of the Missouri statutes was vindicated, may be consulted.

In Railway Company v. Kreager, 61 Ohio St. 313, 56 N. E. 203, the Ohio statute here involved, and to which we refer above,. was under construction. Its provisions, so far as they have any bearing upon the decision in that case, have been already substantially stated. The syllabus of the case is as follows:

"1. The act of April 26, 1894 (91 Ohio Laws, p. 187), imposes upon every railroad company operating a railroad or part thereof in this state, an absolute liability for loss or damage by fire, originating on its land, caused by operating the road; and the fact that the fire originated on the land of the company is made prima facie evidence that it was caused by operating the road. In an action for such loss or damage, it is not necessary to allege or prove negligence on the part of the company; nor is the absence of such negligence a defense.

"2. A different rule of liability, and of evidence, is provided by the act, where the loss or damage is caused by fire originating on land adjacent to the land of the railroad company. In such cases the company is liable only when the fire was caused in whole, or in part, by sparks from an engine on or passing over the road; and the fact that the fire was so caused is made prima facie evidence of negligence on the part of the company or person operating the road. But this prima facie case of negligence may be overcome by proof, under a proper pleading, that the company exercised due care, the burden being on the company to show that it was free from negligence."

The question as to whether the prima facie case made for the plaintiff might be rebutted or overbalanced by the evidence offered by the party upon whom the burden had been thus shifted was not involved. "No evidence," said the court in its opinion, "was offered to show the defendant exercised due care and the only instruction. asked" (in reference to the care for a loss occasioned by sparks from an engine to property adjacent to right of way) "was: "That unless the jury find the injury complained of resulted from the carelessness and negligence of the defendant in running and operating its road, then the verdict should be for the defendant.' In the absence of any evidence to rebut the presumption of negligence from the fact that the fire was communicated by sparks from a passing engine the plaintiff was plainly entitled to a verdict.

In the case of Klunk v. Hocking Valley Railway Company (Ohio) 77 N. E. 752, the action involved a construction and application of 3365-21, Rev. St. Ohio 1906, by which it is provided that if an employé shall receive an injury by reason of any defect in any car, locomotive or machinery owned or operated by such corporation, "such corporation shall be deemed to have had knowledge of such defect before and at the time such injury is sustained, and when the fact of such defect shall be made to appear in the trial of any action in the courts of this state brought by such employé or his legal representatives, against any railroad corporation for damages on account of such injury so received, the same shall be prima facie evidence of negligence on the part of such corporation." It appeared that the injury resulted from an alleged defect in a water glass upon a locomotive upon which plaintiff was employed as engineer.

The trial judge charged the jury on the subject of burden of proof as follows:

"If you find from the evidence that said water glass was then and there defective, and that the plaintiff received said injuries in consequence thereof,.