Mr. Justice Sterrett
delivered the opinion of the court, March 15th 1880.
It must be conceded that the plaintiff below was not entitled to recover without sufficient evidence of negligence, on the part of the railroad company, in consequence of which his property was injured or destroyed. The only allegations of negligence were the failure of the company to use a sufficient spark-arrester, and carelessness in the management of its engine. There was not a particle of direct evidence of either, and the jury was asked to infer one or both from the fact that the dry grass, stubble, &c., were ignited in several places on both sides of the road. The substance of the testimony, on the part of the plaintiff was, that on the 5th of April, when the fire occurred, the weather was dry and windy, and the dead grass, &c., along the line of the road was in a very combustible condition; that, after the freight train had passed, smoke and fire were observed at several points in the immediate vicinity of the burning. It was not shown that sparks of an extraordinary or unreasonable size were emitted, nor was there any other testimony from which failure to use a sufficient spark-arrester, or improper management of the engine could reasonably be inferred. On the contrary it was shown, on the part of the company, that the spark-arrester in use was one of the most approved kind and in good order, and that reasonable care was exercised in running the engine.
The company in operating its road had an undoubted right to use steam-engines ; and no person, natural or artificial, is answerable in damages for the reasonable exercise of a right, accompanied with a proper regard for the rights of others. The company was bound, however, to use spark-arresters of the most approved kind, keep them in good order, and exercise reasonable care and diligence in running its engines. It was shown affirmatively, by uncontradicted testimony, that all this had been done. The bare fact that dry grass and stubble on the line of the road were ignited, was not of itself evidence of negligence in either of these particu lars. It is impossible to so construct or equip an engine that no sparks will be emitted. The most that can be done is to prevent the escape of large sparks or coals. The most approved sparkarresters necessarily permit the escape of small sparks, and if these come in contact with dry and combustible material on a windy day, the result is very frequently a fire, more or less extensive, according to the kind and quantity of material at hand for it to feed upon. The burning of dry grass and other combustible material along the line of the road, in the manner testified to in this case, without more, was neither negligence nor evidence from which a jury would be justified in finding negligence. The principle involved in this case was recognised and applied in Jennings v. The Railroad Co., ante, page 337. Upon a state of facts, differing in no essential particular from those of the present case, the jury was instructed to render a verdict for the defendant; and in affirming the judgment it is said: “ To hold that the fact of the fire having taken place was prima facie evidence that the sparkarrester was defective, and, therefore, that the case ought to he submitted to the jury, would be practically to hold railroad companies liable for all fires; for it is a notorious fact that no sparkarrester has yet been invented to prevent all sparks, and a little spark may kindle as large a conflagration as a large one. It depends on the dryness or humidity of the atmosphere whether a spark will go out before reaching the ground, and whether what it reaches is in a condition to be easily ignited.”
We are of opinion that the testimony was insufficient to justify the submission of the case to the jury.
Judgment reversed.
The plaintiff subsequently petitioned the Supreme Court to award a new venire, on the ground that there was additional evidence existing on the subject of negligence which, in the opinion of counsel, would be sufficient to establish negligence on the part of the employees of the company.
The petition was refused.