
    Ruffner v. The Cincinnati, Hamilton, and Dayton Railroad Company.
    “Where a railroad company is authorized to propel its trains and operate its road by the use of steam locomotives, no inference of negligence arises from the mere fact that an injury to adjacent property was caused by sparks emitted from such locomotives.
    Motion for leave to file a petition in error to the District Court of Hamilton county.
    The original action -was brought by plaintiff in error, against defendant in error, for injury to plaintiff’s cattle from a passing train on defendant’s road. Shortly before the alleged injury, dry grass in or near the line of defendant’s road was ignited by a spark from a passing locomotive, and the fire was communicated to, and destroyed a. fence inclosing the field where the plaintiff’s cattle were in pasture, whereby the cattle wandered upon the defendant’s track and were injured by a subsequent train, without any negligence, however, in the management of the train, as was admitted upon the trial below.
    The defendant is a railroad corporation under the laws of this state, and is authorized by law to operate its road by the use of steam locomotives, etc.
    In the court of common pleas judgment was rendered in favor of the defendant, which was affirmed in the district court.
    
      On the application for leave to file a petition in error, several errors were alleged; but, upon the refusal of the application, the case was set down for report upon a single point, which is stated in the opinion.
    
      Stimmel ‡ Davis, for the motion.
    
      Matthews, Ramsey <$• Matthews, contra.
   McIlvaine, J.

The sole question submitted to me for report is this: Does an inference of negligence arise from, the mere fact that an injury results from a fire caused by' sparks from a passing locomotive, in the use of a chartered railroad company, which is authorized by law to propel its-trains and operate its road by the use of -steam locomotives ?

This question must be answered in the negative. The-emission of sparks from such locomotives results from the-mere use, and is as natural as it is common ; therefore, it-can not be presumed, either as matter of law or matter of fact, that the escape of sparks is caused by carelessness or negligence in the use.

We make no inquiry now, as to what facts or circumstances would prove negligence on the part of a railroad, company, where a fire is communicated to adjacent property from its locomotives. It is enough here to say, that-where a liability for an injury of this kind is sought to be enforced, some fact or circumstance of negligence must be-alleged and proved. It is not enough to show that the-injury was caused by sparks escaping from a passing engine, without more. A party is not answerable in damages-for the reasonable exercise of a right. A liability arises-only when it is shown that the right was exercised negligently, unskillfully, or maliciously.

The doctrine here announced is sustained by the following cases: Railroad Co. v. Yeiser, 8 Penn. St. 366; Turnpike Co. v. Railroad, Co., 54 Penn. St. 345; Burroughs v. Railroad Co., 15 Conn. 124; Road v. Railroad Co., 18 Barb. 80;. Sheldon v. Railroad Co., 14 N. Y. 218; Railroad Co. v. Woodruff, 4 Md. 242; Smith v. Railroad Co., 37 Miss. 287. See, also, Wharton on Law of Negligence, §§ 869 and 870, and numerous other cases there cited.

Motion overruled.  