
    7710
    BIRT v. SOUTHERN RY.
    1. Railroads — Communicated Fire — Negliegnce—Presumptions.—Testimony tending to show damage to property by fire communicated by a railroad' engine raises a presumption of negligence, which casts the burden on the railroad company to show its engine was constructed, equipped and managed with duet care.
    
      2. Amending Pleadings — Ibid.—A complaint alleging a communicated fire was negligently set out may be amended during trial by striking out the allegations of negligence and alleging a cause of action under the statute which makes the railroad company liable without regard to negligence.
    Before Gruber, J., Barnwell, October, 1909.
    Reversed.
    Action by J. M. Birt against Southern Railway Co. Plaintiff appeals from order of nonsuit.
    
      
      Messrs. J. A. Willis, H. P. Buist and H. H. Ninestein for appellant. Mr. Willis
    
    cites: Plaintiff had the right to have this case submitted to the jury on common law right of action: 81 S. C. 572; 16 S. C. 588; 2 Strob. 356. Plaintiff had the right to amend by changing the cause of action: 83 S. C. 557.
    
      Messrs. Harley & Best, contra,
    cite: Defendant was entitled to nonsuit on failure to prove negligence: 41 S. C. 86; 158 U. S'. 285; 10 S. E. 352; 57 Pac. 938; 59 N. E. 211; 95 E. 305; 133 Eed. 1009; 142 Fed. 176.
    November 11, 1910.
   The opinion of the Court was delivered by

Mr. Justice Hydrick.

When there is testimony tending to show damage to property caused by fire communicated by a railroad engine, it is error to grant nonsuit on the ground that there is no evidence oí negligence; in such cases, a prima facie presumption of negligence arises which casts the burden on the railroad corporation to show that its engine was constructed, equipped, and managed with due care. Hutto v. Ry., 81 S. C. 567, 62 S. E. 835, and cases cited.

2 Á complaint which alleges that such fire was negligently set out may be amended during trial, after the evidence has been taken, by striking out the allegation of negligence SO' as to make the action one under Section 2135 of the Code of 1902, which makes every railroad corporation liable for damage caused by fire communicated by its engine (except in the cases specified) without regard to the question of negligence. Brown v. Ry., 83 S. C. 557.

Reversed.  