#### Pennsylvania Company, Operating the Cleveland and Pittsburgh Railroad, *versus*Watson.

1. The fact that an engine emits fire and throws coals along its way i® without more, is evidence from which the jury may infer that it fired a house which was burned, and also that the spark-arrester was imperfect.

2. In an action against a railroad company for burning a house by their engine, the burden is on the plaintiff to prove negligence, which is the absence of such care as is sufficient under the circumstances to'avoid the danger and secure safety. *Per Kirkpatrick, J.*

3. An action does not lie for the reasonable exercise of one’s right, and he is not answerable in damages if another be injured, unless on proof of negligence, unskilfulness, or malice. *Id.*

November —, 1875.

Before Agnew, C. J., Sharswood, Williams, Mercur, Gordon, Paxson, and Woodward, JJ.

Error to the Court of Common Pleas of *Allegheny*County, No. 2, of October and November Term, 1875.

This was an action on the case, commenced November 24th, 1875, by Alexander M. Watson, against the Cleveland and Pittsburgh Railroad Company; the record was after-wards amended by substituting “ The Pennsylvania Company, Operating the Cleveland and Pittsburgh Railroad.” The declaration was, that the plaintiff, on the 27th day of May, 1873, owned a house in the borough.of Bellevue, at Jack’s Run, on the Pittsburgh, Fort Wayne and Chicago Railway ; that on the day aforesaid the defendants “ did so carelessly, negligently,.and unlawfully conduct themselves in the premises, and manage, run, and control a locomotive engine used” by them, that the sparks emitted from the engine in passing the plaintiff’s house set the house on fire and consumed it.

The case was tried May 3d, 1875, before Kirkpatrick, J.

The plaintiff’s evidence was, that shortly before 2 o’clock on the 27th of May, 1873, just after the defendants’ train had passed down the railroad, when near plaintiff’s house, fire was discovered on the bank, and immediately after passing the plaintiff’s house it was found to be on fire ; there were three places besides the house that were on fire at the same time; the fires on the bank started fifteen or twenty feet from the track; there was also a station house, not far distant, which took fire about the same time ; the woods above and below the station were also on fire, about two hundred yards from plaintiff’s house. There was evidence that the train passed very rapidly, at the rate of thirty or forty miles an hour, and that a great deal of fire and sparks was blowing out of the smoke-stack; the fires in the woods and the *294house were on the same side; there were no fires there before the defendants’ train passed.

There were a number of witnesses examined for plaintiff, who all testified substantially as is above stated, and also said that no other train had passed for some time before the defendants’ train.

The plaintiff, under objection and exception, testified as to the rental value of his house.

Eor the defendants there was evidence that another train had passed along the road about thirty minutes before the train in question; that the smoke-stack was of a good character, one of the best kind at that time known, and that the spark-arrester was in good order on the da^ of the fire ; also from the engineer, that he saw fire near the road before his train passed.

The following are points of the defendants,'with the answ’ers of the Court.

2. The burden of proof is on the plaintiff, to prove negligence on the part of defendants, resulting in the injury, and having failed to do so, the verdict of the jury should be for the defendants.

Answer: The burden of proof, as claimed, is certainly upon the plaintiff; but whether he has or has not failed to establish negligence we leave to the jury to say, instructing you that negligence is the absence of care under the circumstances, and such care is always required as is evidently sufficient under similar circumstances to avoid the danger and secure the safety needed......

5. It is the right of the defendants, so far as the plaintiff’ and the public are concerned:

(“1. To use coal for fuel for generation of steam; 2, to attain the highest degree of speed; 3, they are not answerable for damage in the reasonable exercise of these rights, unless upon proof of negligence, unskilfulness, or malice, the burden of proving which is on plaintiff.”) In this case there is no evidence of either, and the plaintiff should not recover.

The Court answered, affirming the part of the points in brackets, and denying the other, and saying further: “ Wo leave it to the jury to say whether there is unskilfulness or negligence on the part of the defendants; malice is not in this case, and cannot be, as we have stated in our general charge.”

9. The jury are not to consider its rental or contemplated lease in estimating its value. Refused.

The Court charged:

“.....The next will be as to the cause of the fire; and this is one of the important issues in the cause. (The plaintiff' claims that the fire was caused by the sparks which *295were thrown off from the defendants’ locomotive, and that this was owing to defectiveness in the construction and condition of the ‘ spark-catcher,’ and the extraordinary high rate of speed at which the locomotive was driven past this property. The burden of establishing this is thrown by the law upon the plaintiff who alleges it.) It is a principle well settled that an action does not lie for a reasonable use of one’s right, though it be to the injury of another. For the lawful use of his own property a party-is not answerable in damages unless on proof of negligence, unskilfulness, or malice......

“ Then, was there any unskilfulness or negligence on -the part of the defendants in the management, or the conduct, or in the condition of their locomotives at the date and upon the occasion of the accident, by means aud on account of which the plaintiff’s house was. burned? As we have already intimated, the existence of neither of these elements is to be presumed, but must be established by the party alleging it, — the plaintiff here. Negligence is the absence of care under the circumstances, but the mere'fact that the house was burned down, and the further fact that it was burned down by sparks from the defendants’ locomotive, do not in and of themselves raise a presumption of negligence.....

“ Negligence, therefore, on the part of the defendants having been alleged by the plaintiff, cannot be presumed from the mere fact in itself of his house having been burned, and also having been burned by sparks from the defendants’ locomotive, but must be established by him to your satisfaction before he is entitled to a verdict at your hands. (If he has done so, the converse of the proposition is equally true, and he will be entitled to a verdict, and in such amount as you think all the evidence and circumstances surrounding this ease justify and warrant.) The measure of damages we apprehend is properly suggested in one of the points presented by the learned counsel for defendants, and which we have already affirmed, viz.: The value of the house when burned, taking into consideration its age and condition, and not what it would cost to rebuild it.”

The verdict was for the plaintiff for $1800.

The defendants sued out a writ of error, and assigned for error the answers to the points, and the parts of the charge in brackets.

*S. Sohryer,*for plaintiffs in error.

The burden of proof of negligence is on the plaintiff: Philadelphia and Reading R.R. *v.*Yeager, 23 P. F. Smith, 121. A railroad company is not liable for damages from fire if it arises in the reasonable *296exercise of a right exercised with a cautious regard to the rights of others: Railroad *v.*Yeiser, 8 Barr, 877; F. and B. Turnpike *v.*Philadelphia and Trenton R. R., 4 P. F. Smith, 350.

*T. M.*Marshall, for defendant in error,

cited: Railroad *v.*Doak, 2 P. F. Smith, 381; Huyett *v.*Philadelphia and Reading Railroad, 11 Harris, 374.

Judgment was entered in the Supreme Court, March 15th, 1876.

Per Curiam :

We discover no error in the trial of this cause in the court below. It would be difficult to prove that a building was set on fire by sparks from an engine if the evidence in this case was not .admissible and sufficient to prove the fact. This was the first step in the cause, to prove that the building was thus set on fire. Whether the sparks were only such as the most approved spark-arresters could not arrest, and for which the company was not liable, or were large coals of fire, such as the modern improvements upon spark-catchers would prevent from being thrown out, was a question of fact to be determined by the jury, and was fairly submitted to them. Certainly the fact that an engine emits a stream of fire and sows the coals broadcast along its way, setting fire to many things along the track, is evidence from which the jury may infer an imperfect and inferior spark-catcher, and from this fact negligence. This fact being fairly submitted and negligence proved, we discover no error in our power to correct.

Judgment affirmed.