
    Lou. & Cin. & Lex. Railroad Co. v. Wm. Wigglesworth & Co.
    Railroads — Burden of Proof — Defective Spark Arrester.
    The burden is upon the defendant railroad company, in an action for damages by fire, to show that a train drawn by an engine did not have defective spark arresters., where .such fact is peculiarly within its knowledge.
    APPEAL PROM PAYETTE! CIRCUIT COURT.
    December 9, 1872.
   Opinion by

Judge Lindsay:

The evidence in this case certainly conduced to show that the fire that consumed the corn of appellee originated from sparks emitted from one of appellant’s locomotives.

Johnson & Brown, for appellants.

Breckenridge & Buckner, for appellees.

A locomotive with a defective spark catcher passed up to Lexington at 7 o’clock on the evening of the fife. A train returning from Lexington passed Darnell’s at 10 o’clock the same night. It was within the power of appellant to have shown whether or not that train was propelled by this defective locomotive, just as it did show that the locomotive drawing the train'passing from Louisville to Lexington on the same night was in perfect repair.

The failure upon the part of appellant to make this proof considered in connection with the other facts proven, authorized the court to give the instructions complained of, and made it his duty to overrule the motion for a new trial.

The two instructions given upon motion of appellees', qualified ' as they are by the instruction given upon appellant’s motion, correctly present the law of this case.

The remaining instructions 'asked for by appellant were properly refused. Appellees did not base their right to a recovery upon the negligence of appellant in failing to take proper care of their corn, but upon its negligence in using a defective locomotive. Hence these instructions were in no sense applicable to the issue.

Judgment affirmed.  