#### M. V. Stewart, Appellee, v. Iowa Central Railway Company, Appellant.

Railways: . fires: negligence: presumption: burden of proof. Under the statutes proof that a fire and resulting damage was ■ due to the operation of a railway not only imposes upon the company the burden of showing due care, but raises a presumption of negligence which has the force of substantive evidence, even after proof of due care.

*Appeal from Mahaska District*Court.— HoN. Byeon W. Peeston, Judge.

Wednesday, November 13, 1907.

Action at law to recover damages in the value of a stock of merchandise destroyed by fire. It was alleged in the petition that the building in which plaintiffs goods were situated was set on fire by sparks from a locomotive engine passing on defendant’s railway, resulting in a complete loss of such goods. Negligence was' alleged in that the *183engine in question was not properly constructed., was out of repair, and, at tbe time, was being improperly and carelessly operated; tbat by reason of sucb negligent condition and operation fire escaped from said engine and caused tbe loss and damage complained of. Tbe answer denied generally, and this was followed by an averment tbat tbe engine in question was properly constructed and equipped, and was in good repair, and tbat the same was properly and carefully managed. There was trial to a jury resulting in a verdict in favor of defendant. A new trial was granted on motion of plaintiff, and defendant appeals.

*Affirmed.*

*John I. Dillie, John O. Malcom*and *L. G. Blanchard (George W. Beevers,*of counsel), for appellant.

*Bolton & Bolton, Lacey & Lacey,*and *D. G. Waggoner,*for appellee.

Bishop, J.

Tbe action was brought in reliance upon tbe provisions of Code, sections 2055, 2056. ' Tbe latter section reads as follows: “ Any corporation operating a railway shall be liable for all damages . . . occasioned by fire set out or caused by tbe operation of sucb railway. Sucb damages may be recovered ... in tbe manner set out in tbe preceding section,” etc. Tbe provision of section 2055 which is thus made applicable is in these words: “ And to recover the same (i. e., damages) it shall only be necessary for him to prove tbe loss 'of or injury to bis property.” Tbe trial court attempted to give construction to tbe statute provisions thus quoted, and, in tbe third instruction given, tbe jury was told tbat the burden was on plaintiff to establish that the fire complained of was set out by one of defendant’s engines, and tbat tbe property destroyed was of some value; that proof of these facts was sufficient to make out a *prima facie*case of negligence on tbe part of defendant. The instruction then continued thus: “ On proof of tbe setting out *184of tbe fire, tbe law presumes negligence on tbe part of tbe defendant, but that presumption may be overcome by evidence, and tbe presumption is only sufficiently strong to shift to tbe defendant tbe burden, and this imposes upon tbe defendant tbe burden to establish due care, which is tbe converse of negligence.” In granting a new trial, tbe court planted its ruling upon tbe express ground of error in such instruction. Tbe reasoning on which tbe conclusion for error was reached is not reflected by any statement appearing in tbe record.

In support of tbe ruling, and relying upon tbe statute, counsel for appellee contend: First, that tbe instruction was erroneous, in that thereby tbe jury was told that tbe presumption arising from proof of tbe fire, and that it was caused by a spark from defendant’s engine, should be given effect only to shift tbe burden of proof; second, that tbe instruction involved error, in that tbe jury were not thereby advised that tbe burden was on defendant to overcome tbe presumption arising from proof of tbe fire by a preponderance of the evidence. On tbe other band, it is tbe substance of tbe contention of counsel for appellee that no more was intended by the statute than to *“*establish a rule of evidence and change tbe order of proof in such cases; that, so considering tbe statute, tbe instruction was free from error.”

Tbe question of tbe proper construction of tbe statute has been before this court on several occasions. It was determined in *Small v.*Railway, 50 Iowa, 338, that the statute did not have effect to eliminate tbe question of negligence in such cases, and hence could not be accepted as creating an absolute liability; it being remarked that there must be negligence somewhere to make tbe company liable. And tbe correct rule is deduced to be that proof of a fire set out by a locomotive engine “ makes a *prima facie*case of negligence, and tbe burden is devolved upon tbe company to show itself free from negligence.” Further in tbe course of tbe opinion, it is said, in respect of tbe provision now' appearing in section *1852055, that *“*the design is to provide what is necessary to show a *prima facie*liability for fires.” In *Babcock v. Railway,*62 Iowa, 593, the contention for error was based on the refusal of the trial court to instruct a verdict in favor of defendant. It was insisted that the evidence for defendant showed without conflict that its engine was in perfect condition and had been properly handled, and, this being true, it should be ruled as matter of law that the presumption, raised by the statute, of negligence,, had been overcome, and hence there was nothing to submit to the jury. In the original opinion, written by Day, C. J., there is no discussion of the statute farther than it is said, after citing *Small v. Railway,*50 Iowa, 338, that: “ Under this decision, the effect of the statute is simply to change the burden of proof ”— an expression adopted in some of the latter cases, and which, as we shall see, does not accurately express the situation. In that,case a rehearing was granted, and a further opinion by Beck, J., filed. Therein the effect of the statute was discussed, and it was said: *“*Under the statute, and the decisions of the court, the occurrence of the fire is *prima facie*evidence of defendant’s negligence. The 'fire itself is evidence of negligence. It is, however, only *prima facie*evidence. But it establishes negligence, which must be regarded as a fact until contradictory evidence requires a different conclusion. There must of necessity be conflicting evidence in the case. The fire under the law is evidence of defendant’s negligence; the good condition of the engine, the diligence of defendant’s employes, and other facts, are evidence of defendant’s care. Here is conflicting evidence which must be determined by the jury.” Passing several intervening cases, unnecessary to he noticed, the statute again came into review in *West Side Ins. Co. v. Railway*(Iowa), 95 N. W. 193, where it was said: *“*Under the rule existing in this State, the mere happening of the fire not only shifts the burden of proof to defendant to show freedom from negligence, but stands as substantive evidence of neglect on *186the part of the company operating the train.” The latest case on the subject is *German Ins. Co. v.*Railway, 128 Iowa, 386. There an instruction was given by the trial court, in substance, that “ if the jury found that the fire was set out by one of defendant’s engines, which destroyed the insured property, then the presumption arose that defendant was guilty of negligence, and, in order to avoid liability, the burden was on defendant to overcome this presumption by negativing every'fact which would justify a finding of' negligence on its part.” And, without discussion or reference to the former cases, this statement of the rule was approved.

To the view of the rule of the statute as thus generally stated in the case last cited, we are wholly disposed to adhere. Considering that evidence of negligence is still necessary to a recovery, the unmistakable genius of the rule is that the presumption arising from proof of the fire shall be given the effect of affirmative evidence, establishing *prima facie*the fact of negligence. If the defendant shall elect not to introduce any evidence, the presumption is 'to have the force of proof, affording warrant for the passing of judgment. If the defendant shall elect to proceed, the presumption continues, having all the force of substantive evidence of negligence, until overcome by the weight of the affirmative evidence introduced in proof of due care. It follows from this, and manifestly, that the office of the presumption is inadequately, if not incorrectly, expressed, in saying that its effect is simply to change or shift the burden of proof. From the practical viewpoint, the situation does not involve a shifting of the burden of proof. The plaintiff assumes the burden of proving negligence only as he is required to prove the fire, and that it was caused by defendant; whereas, from the beginning, the burden is on the defendant to make affirmative proof that it was in the exercise of due care.

Recurring now to the instruction in question, it is to be said that it is possible to the legal mind, by analysis, and having reference to other portions of the charge, to bring it *187into harmony with our understanding of the rule. But that is not the problem with which we have to deal. Bather it assumes this form of question: Would the average juror, upon being told that the presumption is only sufficiently strong to shift to the defendant the burden, etc., be likely to assume that such was its sole function, and that, having served such purpose, it must sink out of sight, leaving the question of due care to be determined solely upon the evidence introduced by defendant? Evidently the trial court concluded from his view of the situation that such a result was reasonably probable, and hence answered the question by granting a new trial. The matter was one calling for an exercise of discretion, and we should disturb the ruling only on conviction that the question should have been answered the other way. We are wanting in such conviction.

What we have said foregoing will be sufficient to make it clear that, as the burden of proving due care was on defendant, this could have been satisfied only by a preponderance of the evidence on the subject. But, if this had been all, it is not probable that a new trial would have been granted, as this phase of the subject was fully covered by an accompanying *instruction.*— Affirmed.