was its duty to guard against such risk; that its failure to have a watchman on duty, as it had undertaken to do, tended strongly, if not conclusively, to establish the defense of contributory negligence and preclude a recovery against the railroad company.

[Ed. Note. For cases in point, see Cent. Dig. vol. 41, Railroads, § 1681.]

At Law. On motion for new trial.

The following is the charge to the jury:

The plaintiff, a fire insurance company, having paid $4,375, the sum for which it insured the compress building, and having paid $55,506.92, its loss on 1.150 bales of cotton which were destroyed by fire while in possession of and on the platform of the compress company, is now entitled, as the subrogee of the several persons to whom the losses were paid, to sue defendant company for damages on the cause of action declared on in the petition. The plaintiff company is seeking to recover as damages against defendant railway company the sum of money which it paid its several assignors. The allegations of the petition show that through or by defendant's negligence flying fre sparks from defendant company's engine caused, the fire which fell upon and destroyed the cotton. Under the view of the court the plaintiff company, as the subrogee, is entitled to sue the defendant company for damages under the same rules of law, substantially, that would have or could have rightfully been invoked by or against the owners of the destroyed cotton on the trial of a suit instituted by themselves charging the railway company with negligence. The court, now considering and disposing of. the issue as to the liability of the defendant company for the amount paid by the insurance company to the compress company for its fire loss on its building, charges you that no recovery on that demand can be had against the defendant company. The court is of the opinion that the terms of the contract exhibited to you between the compress company and the railway company in relation to it, the compress company being permitted to extend its platform on and over the railway's right of way, forbids the compress company to claim damages in this case.

There are several issues of fact suggested in the evidence, upon which are founded the contradictory contentions of counsel on either side of this case. The burden of proof is on the plaintiff to establish by a preponderance of proof its contentions on the material issues.

The plaintiff contends that the preponderance of evidence shows that flying sparks, thrown from the smokestack of defendant's engine, fell upon and set ire to the cotton in question. It contends that the defendant railway company was guilty of actionable negligence in carelessly operating its engine at the time such fire sparks fell upon and set fire to the cotton. It contends that, considering the character of the work the switching engine was engaged in and the environmental surroundings in the midst of which the engine was switching cars, the defendant was guilty of negligence, because the engine operated by the railway company, at the time the flying fire sparks fell upon the cotton, was not such a reasonably safe engine in its equipments as the railway company should have used in doing such work as they were doing at the time and place in question. It contends that the spark arrester then beng used in the engine was so defective or faulty in its construction, or damaged by use, that such large and dangerous inflammatory flying fire sparks were thrown from its smokestack, as would not or should not have been thrown from the smokestack of an engine with a spark arrester in a reasonably safe condition. Plaintiff contends that the unusually large, dangerous, flying sparks were thrown from the smokestack onto the cotton because of the defendant's negligence in using a spark arrester which was in a bad and damaged condition. It contends that, considering the situation and surroundings present and known to the engineer, the engineer, at the time the flying parks from his engine fell upon and destroyed the cotton, was operating his engine carelessly, and in so doing he was then guilty of negligence, which was the proximate cause of the fire. It contends that the careless operation of the switching engine is shown by the rapid speed at which it was running

and by the excessively hard exhaust of its engine, when close, alongside of, or near to the compress platform.

On the other hand, the defendant denies all the plaintiff's contentions on such material issues, and says its engine in use at the time of the fire was well constructed and all its equipments were in good condition and reasonably safe for any work it might be engaged in, and that its spark arrester was of the best approved construction, and an inspection made by witnesses in court, a few hours after the fire, showed that it was in good condition and repair. The defendant railway company contends that there was no actionable negligence in the operation of the engine at or near the compress building platform. It says that the undisputed evidence in the case shows that, however carefully an engine may be operated, or however perfect the spark arrester may be, or however good its condition may be, fire sparks will fly from a running engine's smokestack, and may endanger inflammable material within the range of these flying sparks. It shows that such facts were well known to the compress company when it constructed its platform several feet on and over the railroad's right of way, as well as they were to the engineer, who frequently or daily had to run his switching engine close alongside of the compress platform. where more or less cotton bales were often lying on the platform. The defendant company says that the engineer then running the engine is shown to be a careful, skillful engineer, and that he swears that, with a full knowledge of such conditions, he, on that day and at that time, as on other days, ran his engine, when near the compress building, carefully, to avoid and lessen the danger, as far as practicable, of setting fire to the inflammable things in the midst of which he had to do his daily switching work in the railway yards. The defendant company contends that, if flying sparks from its engine set fire to the cotton, such sparks were only of such character as in the nature of things might fly from the best-equipped engine, and it was not in any way guilty of the negligence which was the proximate cause of the fire and loss therefrom.

The defendant, for its further defense, says the plaintiff company, chargeable in this action, as it should be, with the carelessness of the compress company, was guilty of contributory negligence, which was the proximate cause of the loss, by the cotton exposed and unprotected, as it was, on the compress platform. It contends that Miller, who was the superintendent of the compress company, knew of the place and inflammatory condition of the cotton at the particular time the engine was switching close, within a few feet. along the side of the compress platform, and he knew of the danger to the exposed cotton from the fire sparks thrown from the engine. The defendant says that Miller, a witness, says he heard flying fire sparks falling on the compress roof, and that he had been, only a few minutes before the fire, on the platform, tagging the cotton bales on which the fire began. The defendant contends, on this view of Miller's evidence, that the compress company was guilty of contributory negligence in not being more vigilant in protecting the cotton from flying fire sparks. The defendant contends that the plaintiff company, knowing, as it did, the danger of fire from its own machinery, as well as from flying fire sparks thrown from passing engines. even where such engines may be free from actionable negligence in throwing fire sparks from its smokestack, was chargeable with the duty of exercising prudential or reasonable care in caring for and protecting its patrons' cotton, left on the platform, from such dangers of fire as were in the nature of things inherent in or incidental to the operation of the railway company's engines, and manifestly incidental to the physical environments of the place. The defendant contends that this failure of the compress company, under such circumstances, to exercise reasonable care in so protecting the cotton left on its platform, makes plaintiff company guilty of contributory negligence.

The railway company shows that the plaintiff company, having projected its platform over the railroad's right of way, which platform it daily used for receiving and shipping its cotton over the railway, in or from its own view of the constant danger in the environments, and from its own proper sense of duty to its patrons, whose cotton bales were left exposed on the plat form, had at the moment of the fire for its use, as it had during the working season, a number of water barrels filled with water ready to use in ex

tinguishing fire sparks that might fall in or about the cotton, and the plaintiff company, to promptly meet emergencies, had in its employment, and had on the day of the fire, a man by the name of Butler, whose only duty, it seems, was to keep the water barrels filled and put out flying sparks from passing engines that might endanger the cotton. Butler's own evidence shows that he was in the building 15 or 20 minutes before the fire. He had filled some barrels with water. His duty was to keep barrels filled and look after fire to notice sparks and cinders. He says he happened to slip off from Capt. Miller that day, and "the train came in on me. I knowed it was my duty to stop then, for it was my business to look out for sparks." He says the captain always told him to keep a lookout for sparks when the engine was running on the compress track. He says he was some distance away from the compress when the fire occurred, and couldn't get back. Just before the fire he slipped away. He says, if he had been up there with a bucket of water, he could have done something to put the fire out. He says it was a matter of general talk and notoriety that there was danger when there was switching in there, on account of cotton being close to the track, and he was there especially to watch the cotton.

The argument of defendant company's counsel suggests that Butler's evidence, offered by counsel for plaintiff company, shows that the compress company, in employing Butler and assigning such special service to him, was manifestly giving expression to its interpretation and appreciation or understanding of the dangers inherent in the mutual relations of the two litigant companies; that in so using its employé, Butler, it showed its knowledge of and assumption of such dangers and risks as would menace its cotton, even when the railway company was running its engines over the compress track with all reasonable care for the situation. The defendant contends that, if Aying sparks from its engine were thrown on the cotton, whether such sparks were large or small, and Butler had been present, as it was his duty to be present, to perform the work assigned to him by his employer, the compress company, all danger from such flying sparks would have been avoided. It Contends that he would and could have extinguished the spark, or several sparks, which by his negligence ignited the cotton. The evidence seems to show that the fire occurred just after Miller heard the sound of falling cinders on the metal roof, and at the time when Butler, as he says himself, was away from the place or his post of duty.

Taking up the material issues of fact, I suggest to you that you determine first whether or not sparks from the defendant's engine set fire to the cotton. Of course, you will go no further, if you find adversely to the plaintiff company on that issue. Next take up the issue of contributory negligence on the part of the plaintiff company. I suggest that you, secondly, consider that sue, because, if you find adversely to the plaintiff that is, if the plaintiff was guilty of such contributory negligence as was the proximate cause of the fire loss-the plaintiff cannot recover. In any view you may take of the facts, there can be, for our purposes, but one proximate cause of the damage or injury in this case. The proximate cause of the fire may not under the evidence be chargeable to either party in this suit. The fire may have ocerred without actionable negligence of defendant company, or it may be of ther party to the suit. The plaintiff company, in order to hold the defendant liable, must show you by satisfactory proof that the proximate cause of the loss or damage sued for was in the negligence of the defendant company. The defendant company may, in your view of the evidence, be guilty of some egligence; but, to charge and hold it liable for damages, the evidence must Show that its negligence was the proximate cause of the loss.

Actionable negligence consists in the neglect of the use of ordinary care or skill towards a person to whom the defendant, by implication of law or in The nature of things. owes the duty of observing ordinary care and skill, by which neglect plaintiff, without contributory negligence on his part, has suffered injury to his person or property. The proximate cause, in the law of negligence, is such a cause that approximately produces the particular consequence without the intervention of any independent, unforeseen cause, withat which the injury would not have occurred.

So much has been said by counsel as to the spark arrester not being ex

hibited in court that it may be well for me to say that the presence or absence of the spark arrester may be a circumstance more or less suggestive of flying fire sparks from zealous, heated, contentions of learned counsel; but it is hardly a material issue for you, gentlemen, to worry about. The defendant company has shown you by several eyewitnesses its condition a few hours after the fire, when it was inspected by them. If the spark arrester was in the court, its identity would have to be shown by oral evidencepossibly by the same eyewitnesses. The defendant has shown you its condition by oral evidence. You may believe such witnesses, if you choose, just as you might or might not believe eyewitnesses to its identification.

Now, reverting to the conflicting disputes of counsel, I charge you, if you find from the evidence that the defendant railway company was guilty of negligence in using a spark arrester which was not a reasonably good imple ment for its uses at the time and place, to wit, at the time of the fire, and because of its faulty condition of construction or want of repair inflammable fire sparks of an unusually large and dangerous kind were thrown out of the smokestack, so as to set fire in the cotton, and you believe that the defendant railway company, in using such a faulty spark arrester, was guilty of negligence, which the evidence shows was the proximate cause of the fire. you should find for the plaintiff company. I charge you it is the duty of the railway company, in the equipment of its engines and operation of its engines, to use ordinary care and diligence to prevent fire from being communicated from such engine to the property of other persons. By ordinary proper care and diligence is meant such a degree of care and diligence as careful railroad men, such as trained engineers, should, from a proper, reasonable sense of duty, exercise under the conditions or circumstances where or in which they may be operating.

The degree of care and diligence required in a case like this should be commensurate to or proportionate to the amount of danger probably conse quent in a failure to exercise such care. A failure to exercise reasonable care in the discharge of a duty implied in or by the pending conditions is negligence, and, if such failure to exercise reasonable care was the proximate cause of the fire, the defendant would be liable. If you find that the engineer, at the time flying sparks are said to have fallen on the cotton, was guilty of negligence in carelessly operating his engine, and you believe that to said negligence is chargeable the proximate cause of the fire, you should find for the plaintiff. If you believe the spark arrester in the engine was reasonably well constructed and was in good condition of repair, even though some fly ing sparks may have fallen in the cotton, you should not find defendant guilty of negligence.

You will observe that I say, even though some flying sparks from the engine may have fallen on the cotton, defendant may not be liable. I say that because it is conceded substantially by counsel that flying sparks may be thrown from a running engine, however well constructed it may be, or however good its equipment may be. In view of the environmental conditions or surroundings at the place and time of the fire, if you find that the engineer, in operat ing the engine reasonably safe in its equipment, was running it carefully and with reasonable care for the conditions about him, even though some sparks may have been thrown from the smokestack of the engine, you should not find the defendant liable for damages. You will note that I say this to you because the defendant company, when or while it may be carefully or skillfully using a well-equipped engine, is or was engaged in the lawful exercise of its railway work, and in so running its engine it was minimizing, as far as practicable, the dangers of the situation. I say this, too, because it was not the legal duty of the defendant company, in using its implements of industry in its own railway yards, to eliminate all elements of possible danger in or to the things in or of the situation. To require such an elimination of danger would be tantamount to prohibiting the use of its engines in railway yards, in or near which men may erect or carry on a cotton compress plant. In addition, I say this to you because, even under the most careful and skillful operations of a well-equipped engine, running within a few feet of such a number of cotton bales, exposed as that cotton was on the compress platform, all elements or degrees of danger from flying sparks cannot be eliminat

SVEA INS. CO. V. VICKSBURG, 8. & P. RY. CO.

ed, and in the nature of things there will, even under such favorable conditions, or may be at any time some remaining degree of danger of flying fire sparks falling on inflammable material. To state it differently: After such danger as seems to be inherent in operating an engine, under such conditions as were in the situation when fire was set to the cotton, has been or is diminished as far as may be practicable by careful equipment and management of the engine, It appears from the evidence there may remain or be left some degree of possible, or maybe probable, danger. In such a state of case the risk of such danger as may so remain, whatever it may be, is or was assumed by the compress company, when it built its platform over the railroad's right of way.

As between the parties to this suit, the contributory negligence of a bailee of cotton, whereby it was consumed by fire proceeding from a railway engine, If you find that the plaintiff comis imputable to the owners of the cotton. pany, through the fault of the compress company, for which it is chargeable, was guilty of contributory negligence, in not with reasonable care looking after and protecting the cotton from such dangers as were known by or to the compress company's servants to be inherent in the physical conditions of the time and place, and you believe such contributory negligence was the proximate cause of the fire loss, you should find for defendant company. In considering the matter as to the contributory negligence of the plaintiff company being the proximate cause of the fire sparks igniting and consuming the cotton in question, you will see that counsel for defendant company says that plaintiff company was guilty of contributory negligence, after the fire sparks fell on the cotton, in not extinguishing the fire sparks that fell upon and ignited the cotton. It contends that the engine was of good construction and repair, and was, in fact, being operated with reasonable care, and, if flying sparks from the engine did fall on the cotton, there was no actionable negligence chargeable to the conditions of or the operation of the engine; but the compress company was guilty of negligence in not meeting that danger, it being one of its assumed dangers, and extinguishing the fire sparks before they ignited the cotton. If you believe this contention established by the proof in the case, you should find for the defendant company.

In the nature and reason of things, both litigant parties knew they were charged with mutual duties towards each other. Your knowledge of the evidence may or should enable you to see how or in what manner the parties respectively understood and construed the relations to each other, when engaged in the exercise of their lawful industrial activities. Such knowledge should have a persuasive value in enabling you to determine one way or the other the issue of negligence. Such duties as I speak of are not of a statutory nature. They are formulated in the reasonable relation of things, and inhere, if they exist at all, in the implications of law regulating the conduct and duties of men towards each other. Such duties are implied in the thought, common to all of us, that a man engaged in the pursuit of lawful industries should use all the means at hand, reasonably necessary, under the circumstances, to avoid injuring another.

In my purpose to consider and advise you on some matters suggested in some of the requests for instructions submitted by counsel, I want to add that the undisputed evidence, illustrated as it is by the argument of counsel on either side, seems to show that the compress company, in the nature of things, or in its relations to the defendant railway company's daily operation of its engines over the tracks of its own yard, assumed more or less of the risks manifest in or inherent in the dangers from flying sparks to which its cotton was exposed when stored or lying on the compress platform. The evidence shows, too, as we have seen, that there was some degree of danger manifest in or inherent in the situation which threatened the compress company's cotton every time a passing engine ran over or near to the compress switch track, which could not be eliminated or entirely avoided, even though such engine was free from fault in its construction or equipment and operation. The evidence, as I have said to you, shows that there were some risks, manifest in or inherent in the dangers of the situation, which could not be eliminated from the activities of a well-equipped passing engine, operated with due regard to the inflammable cotton on the platform. Such