
    Atchison, T. & S. F. R. Co. v. William M. Stanford.
    
    January Term, 1874.
    1. Negligence: Railroads: Firing Prairies, etc. Proof that a locomotive engine of a railroad company did, on October 12,1871, cause two or more fires by the emission of sparks therefrom, and that other engines of the same company passed over the same road at the same place all that fall, prior to said day, under like conditions of wind, weather, etc., without causing any fire at or near the place, is some proof of negligence on the part of the railroad company, with regard to the particular engine which caused the fires, — either that it was not in good condition, or that it was not properly managed.
    2. -: Evidence: Admissibility. And it is not necessary that all the conditions of wind, weather, and everything else connected with the passage of each of the engines previously passing, shall be exactly like all the conditions of wind, weather, and eveiything else connected with the passage of the engine which caused the fire, in order that said proof may be admitted in evidence.
    3. Evidence: Examination of Witnesses. Neither is it necessary that. every question put to a witness shall be so broad and comprehensive that the answer, when taken alone, shall be evidence of some issue in the case. If all the answers to a series of questions upon the same general subject, taken together, are competent, and tend to prove some issue in the case, each answer is competent, and the question tending to elicit such answer should be allowed to be asked and answered.
    4. Damages: Remoteness of. Where two fires are caused by sparks emitted from one of the defendant’s engines, and neither of said fires is kindled on the land of the plaintiff, but each is kindled on the land of a different owner, and these two fires spread, finally uniting, and then pass over the property of several landed proprietors, and finally *reaeh the plaintiff’s property three and a half to four miles distant from where the fires was first kindled, and there do the damage of which the plaintiff complains, held, that the damage is not too remote to be recovered.
    5. Evidence: Competent Evidence by an Incompetent Witness: Waiver of Error. Where competent evidence is.introduced on the examination of a witness in chief, and no objection is made to the evidence at the time it is introduced, and no motion is afterwards made to strike it out, and no instruction is asked with regard to it, it is not error for the court to allow it to be considered by the jury, although it may have ap-' peared on the cross-examination of said witness that he was not a competent witness to testify upon the particular subject to which he did testify.
    6. Definitions: “Market Value.” Property may have avalué for which the plaintiff may recover, if it be destroyed, although it may have no actual market value.
    [7. Tort. A wrong-doer in not only responsible for the first result of his wrongful act, but he is also responsible for every succeeding injurious result which could have been foreseen, by the exercise of reasonable diligence, as the reasonable, natural, and probable consequence of his wrongful act. Per Valentine, J.]
    [8. Verdict: Conflicting Testimony. The supreme court will not set aside the verdict of a jury because the evidence is conflicting, if there is some evidence supporting the verdict. See, also, Kansas Pac. By. Co. v. Brady, 17 Kan. 880; American Bridge Co. v. Murphy, 13 Kan. 40; St. Louis, K. C. & K. By. Co. v. Piper, Id. 512; Missouri Pac. By. Co. v. Kincaid, 29 Kan. 655.]
    Error from Chase district court.
    Stanford sued the railroad company to recover damages for injuries sustained by the destruction by fire of a mare and colt, 400 bushels of corn, 80 bushels of oats, 33 bushels of wheat, 25 tons of hay, and some outbuildings and fences. He alleged that the fire doing the injury was set by the emitting of coals and sparks from a locomotive engine passing over defendant’s railroad, and by reason of the negligence and carelessness of defendant. Answer, a general denial, with a special averment “that the said locomotive and engine so used by said defendant in running the said train of cars on said day, and being the same locomotive and engine from and by means of which the plaintiff and his said petition alleges that fire was set to the grass then being on land in his possession, and injury caused thereto, and to his other property, as in said petition set forth, was in good order and repair, and in a safe condition, at and during said ■day, and was provided with all the most approved appliances in use for preventing injuries by the escape and communication of fire therefrom, and was run and operated on and throughout all of said day in •a skillful and careful manner, and by careful and competent servants of the said defendant.” The'easewas tried at the September term, 1872, of the district court. *The plaintiff, Stanford, asked several instructions. Of those given were these:
    “(1) Whether or not there was negligence on the part of the defendant company,either in the management of their engine which communicated the fire and did the damage complained of, or whether such •engine was in proper order, or whether it was supplied with all the proper and known appliances to prevent the communication of fire, are questions of fact for the consideration of the jury solely, to be determined upon consideration of all the evidence in the case.
    “(2) While some negligence, as above described, on the part of the ■defendant, must be shown to have existed, and to have been the cause ■of the fire which caused the injury complained of, still such negligence may be proved as any other fact, or may be inferred by the jury from circumstances, — such as the actual communication of fire to the prairie from the defendant’s engine, and that other engines passed along the line of the road in the same locality on the same day on which said fire occurred, or on the day preceding such day, under similar conditions of wind and weather, and did not communicate fire to the prairie adjacent to the railroad track, if such circumstances are shown by the evidence in the case. ”
    And this instruction asked by Stanford was refused:
    “(5) While the defendant is authorized by law to use fire in the operation of its engines, still, in the use of such a dangerous element it'is bound to use the utmost care in the management of its engines, and is liable for any negligence on the part of .its servants or employes in the management of such engines, and for any defect whatever in such engines whereby damage is caused by the escape of fire.”
    Upon the question of the value of the corn destroyed, the record shows that Stanford testified as follows: Examination in chief: “I had corn in the crib, — 400 or 500 bushels. It was not measured. Could not come any ways near what amount I had. I would be safe in saying I had 400 bushels of corn. It was burned up by that same fire. The market value of the corn was about 40 cents a bushel, as near as I can get at it.”
    Cross-examination: “I hadn’t heard of any sales of corn being made at that time at all. Don’t know what the mar*ket value of the corn was at that time, at all; that is, I don’t know of any sales.”
    The charge of the court was very long. In regard to the measure of damages, the charge contained this instruction:
    “(13) In determining the amount of damages (if any) sustained by the plaintiff you are to be governed by the market value of the articles destroyed (if any were destroyed) at the time and place of such destruction, as shown by the evidence in the case.”
    Verdict and judgment in favor of the plaintiff for $645.50.
    Jacob Safforcl, for plaintiff in error.
    Stanford, defendant in error, testified in relation to the market value of 400 bushels of corn destroyed that it was worth 40 cents per bushel; but on his cross-examination he was more particularly interrogated as to his information or knowledge of the market value of the corn, and he said “that he did not know what the market value of the corn was.” This was all the testimony as to its value. It was considered by the jury, and $160 allowed him therefor. We claim that it was error in permitting this to go to the jury, and error in the jury to allow anything for the corn on this testimony.
    As to the fact of firing: Witness Campbell testified that he saw a fire on the track about 1 p. m., and a locomotive, going west. Shortly after saw another fire west of the first one. He was asked “if any other prairie fires had occurred in the vicinity that fall, on the line of road, which were communicated by the engines of plaintiff in error.” Objection was interposed, overruled, and witness directed to answer. The object of this question had no bearing whatever on the case, and was only asked to prejudice the rights of plaintiff in error before the jury. If witness answered affirmatively, the jury caught the impression that the company were in the habit of setting out fires; if negatively, that the engine claimed to have set out the fire was exceptionally bad. The information, or the want of it, disclosed by the answer of witness, was alike injurious to plaintiff in error. The ordinary requirements of like condition of wind and weather were not embodied in the question. While it may be reasonably supposed by the court that the engine which is said to have set out the fire was engaged in running over the road in that locality frequently that fall, yet, by this question, its former good conduct is made to do duty as proof that at this particular time it was in bad condition. Such questions should not be allowed. Again: The witness was asked “if there was any difference between the wind and w;eather when the train passed east that morning and the one that passed at the time of the fire.” The witness answered there was none. This question was followed by one asking witness to “state a comparison of the wind and weather the day before the fire and on the day of the fire.” Witness answered that there was no perceptible difference; and was then asked “if he knew of trains passing that locality on the day before the fire,” to which he replied affirmatively. Plaintiff in error objected to these questions for obvious reasons: that the state of wind and weather, and the passage and conduct of engines other days, could cut no possible figure in proving negligence on plaintiff in error. Witness was also asked “if he knew of other fires than the one doing the damage, starting either east or west, after the passage of this engine going west that day;” and which, over the objection of plaintiff in error, he answered that “all he knew was what other parties coming east had said about it.” Certainly, if no fires had occurred, the parties would not have said anything about them; and while it is admitted that the answer contains but very little, yet we contend that such a question, and the answer thereto, are improper. The spreading of fires by an engine, and especially on a windy day, as is in proof, is no evidence of negligence. The presence or absence of inflammable material is hot disclosed, and upon which to make an intelligible comparison, if any comparison were proper. The *question and answer are of that character to furnish to the minds of the jury an impression that the only avocation and use of the engines of the plaintiff in error were to traverse its line of railway, and, in a spirit of malignant spite, apply the incendiary spark to neighbors’ property. Witness was also asked if “there had been any fires in his vicinity prior to this one, that fall, ” to which he replied that “there had been none to his knowledge.” The only object of this question was that the freedom of that locality from the terrible scourge of a prairie fire, prior to this one, would be additional matter by which the jury might gather the general malignancy and bad conduct of this locomotive. The court should not have allowed the question or answer.
    
      Witness Shellabarger testified as to the fire: Saw engine pass, and two fires start in a stubble field, and in two or three days thereafter examined the burned place in the stubble field. He was asked what he found there. He said he saw, 25 steps from .the track, a piece of coal about the size of a silver dollar, surrounded by ashes, and that it was about six inches across the ashes. While he did not even surmise where the coal came from, the question was asked solely that the jury might, in their great desire to do justice to the defendant in error, guess that it came from an engine defective and unfit for use. The attempt was made to prove that it came out of the engine. The witness had often seen coal along the track, and said it might have been thrown there. Against the objection of plaintiff in error, witness testified to smoke from other fires, supposed to have arisen from this particular, and as yet unknown, engine. The question was asked by Stanford “whether fire had been set to any prairie in that vicinity that fall, at the time of the passing of any train, prior to the day of the fire.” Witness answered, “Not to his knowledge.” Regardless of the condition of the wind or weather, the presence or absence of grass, in this question and answer the jury is told that of all the trains running daily over the road but one — this particular engine, going west October 12, 1871, about noon — had done damage and set out fires! The jury *were not lawyers, and would not stop to discover the want of the essential elements to make it testimony fit to be entertained; the conditions under which all these preceding trains were run as to wind; its course; the humidity or dryness of the weather; the presence or absence of grass; its inflammability; the direction with or against the winds of these trains; their speed, or load. None of these were asked, disclosed, or known. Perhaps 40 times prior to October 12th this very engine had gone over this locality, and its former good character is here used as a weapon with which to destroy it. Good reputation can be put to no such use. The counsel had but one use for such questions. They were used in the broad scope in which they were put, without condition or limit, as evidence from which the jwry might infer negligence. This was error.
    Witness Bond testified that about 1 p. m. of the day of the fire he saw three fires spring up on or near the line of railway, but saw no cars; that these fires ran in the direction of Stanford’s place, and did the damage complained of. He states that the mare and colt were burned to death; “that he first saw them about 400 yards west of his place; that they were burned to death in 200 yards from where he saw them; that witness’ place is one-half mile east and one-half mile north of the north line of Stanford’s place.” The petition alleges that the mare and colt were burned on the place of defendant in error. Bond is the only witness who testifies as to where the mare and colt were when burned. If regard is had for his testimony, the mare and colt could not po^ibly have been on Stanford’s land, but were roaming at large on the prairie without care or attention, and beyond the control of the owner. Can plaintiff in error be held for the destruction of stock running at large, as is disclosed by this testimony ? We think not. To entitle the defendant in error to recover, besides the negligence of plaintiff in error there must be some care •and supervision exercised by the owner of the property. Were the reverse of this to be held, no evidence would be necessary to prove the establishment of fire-guards around *the property lost by defendant in error. If the value of stock running at large when burned up can be recovered, as in this case, a man may hereafter place his stacks of hay in the midst of an ocean of grass, .and, in ninety-nine cases out of one hundred, trust confidently that the negligence of his neighbor will be his best customer.
    The second instruction asked by defendant in error, and given, states “that negligence may be inferred by the actual communication ■of fire to the prairie from the engine, and that other engines passed along the line of the road in the same locality on the same day or preceding day, under similar conditions of wind and weather, and ■did not communicate fire to the prairies.” The defendant in error tried this ease upon the theory of this instruction, and it is conceded that if the law is different to that here laid down he cannot recover. Under this instruction it would be within its scope if an engine, in the midst of a hurricane, should drop a single spark of fire by which fire was set to the prairie. Even if the law were as defendant in ■error would like it to be, the instruction is too broad for any purpose. There is coupled with the first proposition that other engines passed over the line of road in the same locality, on the same day, or previous day, under similar conditions of wind and weather, and did not set out fire. It is well known that engines run with the wind, against it, quarterly to it, and at direct angles with it; that when running against the wind it requires more exertion, steam, and fire than when with it, and partially propelled by it; yet this instruction makes no •similar direction of trains necessary. The wind and weather may be precisely the same for two successive days, and yet the grass that would not ignite the first day may become dry and combustible the second. While wind and weather may have been the same, no similar condition of the vegetation as to its inflammability is mentioned. The instruction avoided all such complications. But on other and higher grounds the instruction is palpably erroneous. The court is cognizant of the character and settlement of the country within the limits of its jurisdiction. *It will bear in mind that Kansas is sparsely settled; that it has within its borders boundless prairies, reaching from horizon to horizon, uninhabited ¿and unoccupied, save only by far-reaching lines of railway, that penétrate, in the interests of civilization, their solitary wastes; that for league upon league, as is the case with the road of plaintiff in error, they run their course through an ocean of tinder, without the monotony relieved by a single settlement; that for hundreds of miles, fringing both sides of the track, as far as the eye can reach, stretches this inflammable material, at the slightest touch waiting to light the heavens. By no expenditure of money or care can this element of danger be overcome. It is only to be gotten rid of by the development, settlement, and cultivation of these boundless tracts.
    We urge that this ever-present cause of danger should not be overlooked in the law hereafter to be laid down. If, as in older countries, all along the lines of our railways were various kinds of property and settlements, with owners to take care of and manage the same, there-would be aptness in holding our railroads to a more rigorous rule. The presence of property causes the law for its protection. The more populous and wealthy the country, the better and more stringent laws for the protection of property; and in countries where population and property are sparse, by the very nature of things, the less protection. As in England, where valuable property lies continously along the track of its railways, we encounter the most rigor in the construction of the law of negligence, and the proof concerning it, and where it is held that negligence may be inferred by the actual communication of fire from the engine, under proper and qualifying circumstances, so, here in Kansas, the very antipodes of England in wealth, population, settlement, and property, the rule in all justice should be relaxed, and its opposite extreme applied. Some actual fact of negligence should be proved before a railroad could be found guilty of negligence. It is well settled that proof of a collision is no evidence of negligence in an action for injuries. Some actual fact of negligence — such as train out of time, high speed, mis*eonduct, or defect — must be shown to entitle a recovery. Upon what principle should the rule vary ? If the mere fact of setting out fires is proof of negligence, no man need lose anything by a fire starting from a railway engine, regardless of the care, skill, or circumstances under which it may occur. If negligence can be inferred, as stated in this instruction, there is no railway in the state but what is at the mercy of every wind that sweeps the prairies. They are the insurers against all losses by prairie fires starting from their engines that may hereafter occur in this state. If some future Kansas simoon should drive from an engine a single spark, by which the prairie was set on fire, so long as it burned without intermission the railway would continue to be responsible; and whether the state line would end the losses, God and the supreme courts of the adjoining states and territories only can determine. The doctrine sought here to be inculcated and established is not reasonable, — it is not law. Kansas Pac. By. Co. v. Butts, 7 Kan. *308; Gandy v. Chicago & N. B.Co., 30 Iowa, 420; Norris v. Hannibal & St. J. B. Co., 37 Mo. 287, 291; Ohio & M. B. Co. v. Shanefelt, 47 111. 497, 505; Chicago & N. By. Co. v. Harris, 54 111. 528; Indianapolis & C. B. Co. v. Paramore, 31 Ind. 143; Bood v. New York & E. B. Co., 18 Barb. 80; Terry v. New York Cent. R. Co., 22 Barb. 574; Sheldon v. Hudson River R. Co., 29 Barb. 226; Sheldon v. Hudson River R. Co., 14 N. Y. 218; Fero & Buffalo & S. L. R. Co., 22'N. Y. 209; Field v. New York Cent. R. R., 32 N. Y. 339; Ryan v. New York Cent. R. R., 35 N. Y. 210; Railroad Co. v. Yeiser, 8 Pa. St. 366; Huyett v. Philadelphia & R. R. Co., 23 Pa. St. 373; Lackawanna & B. R. Co. v. Doak, 52 Pa. St. 379; Frank-ford & B. T. Co. v. Philadelphia & T. R. Co., 54 Pa. St. 345; Pennsylvania R. Co. v. Kerr, 62 Pa. St. 353; Baltimore & S. R. Co. v. Woodruff, 4 Md. 242; Burroughs v. Housatonic R. Co., 15 Conn. 124; Bach elder v. Heagan, 18 Me. 32; Macon & W. R. R. v. McConnell, 27 Ga. 481; Redf. Rys. 450-462.
    The fifth instruction asked for defendant in error lays down the proposition that plaintiff in error is liable for any negligence on the part of its servants, and for any defect whatever in its engines, whereby damage is caused by the escape of fire. Surely, for defects the closest scrutiny could not guard against, or the greatest care could not avoid, railroads are not to be held responsible; and such defects are never to be made the means by which verdicts are rendered.
    The first instruction asked by plaintiff in error, and refused, was “that upon proof of good condition of locomotive as to arrest of sparks and emission of fire, and the skillful and careful conduct of those in charge, the jury, regardless of all other facts, must find for it.” We are unaware of any fact that proven would entitle a recovery, if there was no *negligence; and which we contend there would not be if the engine was in good repair, and those in charge skillful, competent, and careful. Sixteen instructions were asked by plaintiff in error, and with a singular sort of unanimity, not often entertained in a court, they were all refused. The court erred in refusing to charge the jury “that the gist or foundation of this action is negligence, and that negligence is not presumed on the part of defendant, but that the burden of proving negligence is on the plaintiff.” This instruction was proper, and ought to have been given, or its substance. It was the right of the plaintiff in error to have the principle involved go to the jury. But nothing like it was given by the court in his general charge, or otherwise, and hence the error in the refusal was not cured. We do not know how the fact that the court below twice pronounced most of the charges asked for by plaintiff, first in its special instructions and then in its general charge, will strike the mind of this court, and especially when it is found that every one of the charges asked for by the defendant was promptly refused as a special instruction, though afterwards one of them was given in the general charge. But to our mind such a course, on the part of the court, is open to criticism, at least.
    We feel called upon to urge on the attention of the court the case of Ryan v. New York Cent. R. R., 35 N. Y. 210. in that case the railway company negligently set fire to its own wood-shed, and fire was communicated to the house of the plaintiff, 130 feet distant, and by which it was consumed. The court held that the action could not be sustained, for the reason that the damages incurred were not the immediate, but the remote, result of the negligence of the railway. While the subject of contributory negligence is only up incidentally, we undertake to say that if Stanford, four miles away, can recover for property lost, there is no court authorized to set a limit just where such liability shall cease, if the fire continues uninterruptedly on its journey. If he can recover, it is to be regretted that the sufferers by the Chicago fire have no more responsible person than Madam O’Leary to indemnify *them. Morrison v. Davis, 20 Pa. St. 176; Harrison v. Berkley, 1 Strob. Law, 548; Shear. & B. Neg. §§ 445, 595. These cases show conclusively that the court below erred in its charge to the jury when it says: “If the other facts shown by the evidence warrant a recovery by the plaintiff against the defendant, it is immaterial whether the fire causing the injury complained of was communicated by the defendant’s engine directly to the land of the plaintiff, or whether such fire was communicated to other land, and then spread and communicated to the land occupied by the plaintiff, and thereby caused the injury complained of.”
    The court charged the jury that the amount of damages must be governed by the “market value of the articles destroyed, (if any were destroyed,) at the time and place of such destruction, as shown by the evidence in the case.” This was given twice. In view of this instruction, we would make the inquiry as to what testimony was given of the “market value” of any of the property alleged to have been destroyed. No market value was shown, and the verdict should have been set aside for lack of competent evidence on this very point.
    As regards what is established by the evidence in this case, it will be observed that it is in proof that an engine going west, some time near one in the afternoon of the day of the fire, communicated the fire, or was supposed to have done so, as the fire started after it had passed. But one engine was proved to have passed anywhere near that time. By the testimony of all the witnesses for plaintiff in error, it is shown leyoncl a doubt, that engine “No. 9” was the one, and no proof of a contradictory nature was attempted on the part of defendant in error. The perfect condition of that engine made it absolutely necessary for defendant in error that it should not be the one that passed and did the damage. It would not answer to say that while “No. 9” may have passed, it was notwithstanding some other engine also passing at that time that did the damage. This would not content the defendant in error, nor would it satisfy the jury. So *long as “No. 9” was supposed to have been going west the day of the fire, in perfect repair, and operated in a careful manner, and passing the locality of the fire at about the time of its origin, the jury were powerless, and could do nothing. Their first step was to banish “No. 9” from the road, going west that day regardless of the testimony that it did go. The track is at once cleared of this locomotive by their special finding that it did not go. The jury say by special findings that “No. 9” was in good repair and operated by a skillful and competent engineer. If the court is not satisfied by the testimony that such engine did go west the day of the fire, we are unable to tell what testimony would be sufficient, and we think the conduct of the jury discloses their bias and prejudice against plaintiff in error. Their verdict ought not to stand. Their finding that engine “No. 9” did not go west on the day of the fire is flatly contradicted by all of the evidence in the case in any manner bearing upon this question. It has not even a thread of testimony to stand upon. Nor is there any testimony whatever that any fire was communicated by any other engine of the company, or sprung up after its passage, or that any other engine was out of repair, or negligently handled.
    
      R. M. Rvggles, for defendant in error.
    Plaintiff in error complains of Stanford’s testimony that the market value of corn was 40 cents per bushel, and that, in his cross-examination, he stated that he did not know what the value o£ the corn was. It is sufficient to say that the witness immediately followed this with the statement, “that is, I don’t know of any sales.” As we understand the rule, it does not follow that because there is no market value, which of course is fixed by sales, therefore no value can be proved. In such a case, the best evidence the ease would admit of would be competent. Besides, the evidence, if incompetent at all, was first disclosed to be so on cross-examination; and a motion to take it from the jury would have been the only proper way then to have got rid of it. Nothing of this kind was done *and hence if there was any legal objection to the competency of the evidence it was waived.
    Plaintiff in error also complains that questions were asked witnesses if there had been other fires in that vicinity, and that other-engines had passed over the track on that day, and other days, with like conditions of wind and weather, and did not set out fire. All this was competent and proper evidence to go to the jury, from which they might infer negligence, either in the condition of the engine that did the mischief, or in the management of it. As to the competency of such evidence generally, see Sheldon v.<Hudson River R. Co., 14 N. T. 218; Aldridge v. Great W. R. Co., 42 E. C. L. 272; Smith v. Hannibal & St. J. R. Co., 37 Mo. 291.
    It is also complained of by plaintiff in error that the jury in their findings credited the testimony of the witnesses for defendant below when they testified that engine “No. 9” was in good repair, and disregarded it when the witness testified to “No. 9” passing over 'the track at the time of the fire. The answer to this is twofold: First, the whole question of the credibility of witnesses is with the jury; second, the witnesses for the defendant below in a feeble sort of a way identified the day on which “No. 9” passed along the track as being October 12, 1871; but on cross-examination witness Evans could not tell where he was, or what engine he was running, on that or any other day, or that he 'saw any fire on the twelfth of October.
    Of the authorities cited by plaintiff in error only three are at all unfavorable to defendant in error, viz., Lancaster Co. v. Smith, 62 Pa. St. 53, Pennsylvania E. Co. v. Goodman, Id. 335, and Eyan v. New York Cent. E. E., 35 N. Y. 210; and they are not in harmony with previous decisions in England or this country, and are flatly overruled and disregarded. Kellogg v. Chicago & N. Ey. Co., 26 Wis. 223; Perley v. Eastern E. Co., 98 Mass. 414; Fent v. Toledo, P. & W. Ey. Co., 4 Chi. Leg. News, 326. And, besides, the Pennsylvania and New York cases are not defensible on principle.
    An examination of the instructions asked by defendant below will reveal this fact, that so far as they state correct *law they are substantially given by the court in the general charge.
    The jury find negligence; and that finding is conclusive on this branch of the ease if there was any evidence before them on the point. The following authorities show that the evidence was sufficient to authorize the jury to infer negligence: Grandy v. Chicago & N. E. Co., 30 Iowa, 421; Smith v. Hannibal & St. J. E. Co., 37 Mo. 292; Ohio & M. E. Co. v. Shanefelt, 47 111. 500; Bass v. Chicago, B. & Q. E. Co., 28 111. 9; Aldridge v. Great W. E. Co., 3 Man. & G. 522; Field v. New York Cent. E. Co., 32 N. Y. 345, 350.
    
      
       Another case in court arising out of the same fire, see Atchison, T. & S. F. R Co. v. Campbell, 16 Kan. 200; case referred to, Same v. Bales, Id. 255; as to negligence generally, see Pacific R. Co. v. Houts, ante, *328; Union Pac. R. Co. v. Rollins, 5 Kan. 99, and note; Moore v. Cass, 10 Kan. 220, and note.
    
   Valentine, J.

This was an action for damages caused by fire originating from sparks emitted from one of the locomotive engines of the plaintiff in error, defendant below. After a careful examination of the whole ease we have reached the conclusion that if there was any wrong done to plaintiff in error in the trial of this ease, it was done principally by the jury, and not by the court. The only error of the court, if there was any error, was in not setting aside the verdict of the jury and granting a new trial on the ground that the verdict was not sustained by sufficient evidence. That the fire which caused the damage was produced by sparks emitted from one of the defendant’s locomotive engines, we think was sufficiently proved, and the jury so find; that engine “No 9,” was properly constructed, in good repair, carefully managed, and managed by a careful and skillful engineer, was also sufficiently proved, and the jury so find; and that the preponderance of the evidence shows that the fire was caused by sparks emitted from engine No. 9, we also think is clear. But the jury find that the fire was not caused by sparks emitted from engine No. 9, but was caused by sparks emitted from some other engine. This finding was upon conflicting evidence; and while the weight of the evidence was clearly against this finding, and wdiile it would have been proper for the district court to have set aside the verdict and granted a new trial because said finding was not sustained by sufficient evidence, yet, as there was some evidence to sustain this finding, the supreme court cannot well set aside the verdict and *grant a new trial for said reason, after said finding has been approved and sustained by the court below.

The evidence shows that the fire occurred on October 12, 1871, about 1 o’clock p. m. The evidence of the plaintiff did not show, nor tend to show, what particular engine of the defendant caused the fire; and there was no positive or direct evidence on the part of the defendant that showed that it was engine No. 9. The defendant, however, attempted to show that engine No. 9 passed the place where the fire occurred, at the time it occurred, and that no other engine did pass at that time, or near that time. But the evidence is not very positive upon the point, and all the witnesses who testify upon the subject testify that on the day that engine No. 9 passed that place, the wind, which was a very strong one, was blowing from the south-west, — more from the west than from the south, — while the plaintiff’s witnesses all testified that on the day that the fire actually occurred the wind, which was very strong, blew from a little east of south. Engine No. 9 was not attached to a regular train.

The jury found from the evidence that engine N o. 9 passed the place where the fire occurred on some other day, and not on the day on •which the fire actually occurred. Now, although the jury may have ■erred in their verdict, yet, as there was some evidence to sustain every material finding thereof, the supreme court cannot, after it has been rapproved and sustained by the court below, who heard all the evidence, .set it aside. St. Joseph & D. C. R. Co. v. Chase, 11 Kan. *47. This principle has been so often decided in this court that it must be deemed to be settled. This court has sustained a verdict of a jury, and the finding of a court, -where, in the opinion of the writer hereof, the weight of the evidence wras overwhelmingly against such verdict and such finding, and where, in the opinion of the writer, said verdict and said finding should have been set aside even by this court. School-district. v. Griner, 8 Kan. *224; Ulrich v. Ulrich, Id. *402. This disposes of many of the questions that might otherwise be considered as in the case.

Upon the facts of the case, as found to be by the jury, was *there any error? We think not. Of course the defendant, in a case like this, is liable only for negligence, and the burden of proving the negligence rests upon the plaintiff. We think, however, that, upon the hypothesis that it was not engine No. 9 that caused the fire, the proof of negligence was sufficient. It is true that there was no direct evidence showing whether there was any defect in the engine that caused the fire. It is also true that, there was no direct evidence showing whether the engine was properly managed or not. But it was shown that this engine causing the fire caused at least two fires on that same day, and probably more; and it was also shown that other engines .passed on that day, and on other days prior thereto, during all that fall, without causing any fires. It was also shown by the testimony of experts (defendant’s witnesses) that engines properly constructed, in good repair, and properly managed, seldom cause fires. But plaintiff in error objects to this kind of evidence: First. It claims that the mere production of the fires by the engines is no proof of negligence. Whether this claim is correct or not we do not now choose to consider or to decide ; but for the purpose of this case we shall consider that it is correct. Kansas Pac. Ry. Co. v. Butts, 7 Kan. *317. Second. It claims that proof of negligence must be direct proof “of some actual fact of negligence,” such as that the engine was not properly constructed, or was out of repair; that the engineer was incompetent, or unskillful, or that he managed the engine carelessly or unskillfully. This is an important question, and we cannot say that the authorities are uniform upon the question. The strongest authorities referred to by plaintiff in error in favor of this claim are the following: _ Gandy v. Chicago & N. W. R. Co., 30 Iowa, 420, and Smith v. Hannibal & St. J. R. Co., 37 Mo. 287, 291. But these authorities hardly reach the question. The plaintiff in error also refers to the following authorities: Sheldon v. Hudson River R. Co., 14 N. Y. 218; Field v. New York Cent. R. Co., 32 N. Y. 339; and Huyett v. Philadelphia & R. R. Co., 23 Pa. St. 373.

But these authorities *we think are rather against the claim of plaintiff in error, than for it. The first ease was an action against a railroad company for negligently setting fire to and burning the plaintiff’s building. On the trial “the plaintiff proposed to prove by a witness who lived close to the railroad, and about one-fourth of a mile from the building, that shortly before it was burned he had seen sparks and fire thrown, from the engines used by the defendants in running their trains, through the witness’ premises, a greater distancethan this building stood from the track of the railroad, and that he had picked up from the track, after the passage of the trains, lighted coals more than two inches in length. The evidence was objected to by the defendant’s counsel, and excluded by the court.” Sheldon v. Hudson River R. Co., 14 N. Y. 219, 220. Chief Justice Djgnio, who delivered the opinion of the court in this case, says, with regard to this evidence: “The evidence excluded had a bearing upon both branches of the ease which the plaintiff undertook to establish. It not only rendered it probable that the fire was. communicated from the furnace of one of the defendant’s engines, but it raised an inference of some weight that there was something unsuitable and improper in the construction or management of the engine which caused the fire." Sheldon v. Hudson River R. Co., 14 N. Y. 222. And the exclusion of said evidence was held to be erroneous. In the second case it was held that “where it is in evidence that engines properly constructed, and in good order, will not drop coals upon the track, the dropping of coals from defendant’s engines upon the track is, of itself, evidence of negligence sufficient to charge the defendant. Under such circumstances the burden of proof is upon the defendant to show that they were not guilty of negligence. ” Field v. New York Cent. R. Co., 32 N. Y. 339. In the third case it was held that “where a house was set on fire by sparks from a locomotive engine, and there was evidence that the weather was very dry and windy, and that sparks flew from the defendant’s engines to a great distance, and also set fire to several fields and fences, near the same time and place, it was for the jury to decide whether this ivas sufficient evidence of carelessness.” Huyett v. Philadelphia & R. R. Co., 23 Pa. *St. 373.

These cases hardly sustain the plaintiff in error, but rather the-reverse. These cases do not require that the plaintiff should show by direct evidence some defect in the engine, or some mismanagement of the same. Indeed, in our opinion, it would be extremely unreasonable to require a stranger to the company to do any such thing. The engines are all alike to him. He does not know them apart. Nor does he know when any particular engine is used, or who manages it. And when it passes at the rate of fifteen or twenty miles an hour, he could not see enough of it to ever afterwards identify it. What the engine is, and how it is managed, is peculiarly within the knowledge of the company. Therefore, when the plaintiff has shown that one of the defendant’s engines has caused one or more fires, and'that the ordinary working of an engine under like circumstances does not ordinarily produce such a result, or that engines properly constructed, in proper condition, and properly managed, do not ordinarily, under like circumstances, produce such a result, then we think the plaintiff has made out a prima facie case of negligence; then we think the plaintiff has done enough to require the defendant to show that its engines are properly constructed, in good order, and properly managed. The following authorities we think sustain these views: Hull v. Sacramento R. Co., 14 Cal. 388; Illinois Cent. R. Co. v. Mills, 42 Ill. 407; Ellis v. Portsmouth R.Co., 2 Ired. 138; Piggott v. Eastern Counties Ry. Co., 3 Man., G. & S. 229; S. C. 54 E. C. L. 229; Sheldon v. Hudson River R. Co., 14 N. Y. 218-222; Field v. New York Cent. R. Co., 32 N. Y. 339; Huyett v. Philadelphia & R. R. Co., 23 Pa. St. 373. Of course, upon the whole of the evidence, the preponderance thereof must show negligence on the part of the defendant, or the plaintiff connot recover.

The plaintiff in error also claims that proof that engines had, prior to the fire, passed over the road under like conditions of wind, weather, etc., without causing fires, is not proper proof that engines do not ordinarily, under such circumstances, cause fires. And this is claimed upon theground *that, whichever way the evidence may be, it is equally injurious to the defendant; that if the evidence shows that fires had previously been caused by the defendant’s engines, the jury catches the impression that the company are in the habit of setting out fires; but if the evidence shows that no fire had previously been caused by the defendant’s engines, as in this case, then the jury catch the impression that either the engine which caused the fire, or its management, was exceptionally bad. There is a slight error, we think, in this reasoning.

The plaintiff in error claims, and we suppose correctly, that an occasional fire caused by an engine is of itself no proof of negligence; for we suppose that it is true that the best engine, with the best management, does sometimes produce fires. Hence, proof that an occasional fire had been caused under like circumstances, would have been no evidence against the company, but rather evidence in its favor, tending, as it would have done, to show that engines properly constructed, and properly managed, do sometimes, under such circumstances, cause fires. An uncommon number of fires would possibly, however, unless explained, be some evidence of negligence; for it is possible that courts and juries may take notice, without proof, that ■engines do not very often, under any circumstances, cause fires. Proof that no fire had previously been caused by the defendant’s engines would certainly not have tended to prejudice the jury against the defendant. And such evidence could not of itself in any manner injure the defendant. We think, however, that such evidence would be some proof, slight as it might be, that engines do not ordinarily, under circumstances like those existing in this case, cause fires. This fact can probably be proved only in two ways: First; by the opinion of experts; second, by proof that engines had previously passed over the same road, under like conditions of wind, weather, etc., without causing fires. Both ways were resorted to in this case. To be more explicit on this subject, we would say that we do not understand that one fire alone is any evidence of negligence; but a fire under circumstances *under which engines do not ordinarily cause fires, is some evidence of negligence.

The plaintiff in error also claims that this kind of proof is not admissible unless all the conditions of wind, weather, and everything ■else connected with the passage of each of the engines previously passing, are exactly like all the conditions connected with the passage of the engine which caused the fire; and that unless all these ■conditions are embodied in each question asked for the purpose of •eliciting this kind of evidence, the question should not be asked, nor answered. This we think cannot be correct. If Phis rule were ■adopted, it would absolutely exclude not only this kind of evidence, but all evidence depending for its force and value upon many different circumstances. No two facts were' ever precisely alike. No two events that actually occur are ever perfectly parallel in all their surrounding circumstances. Endless variety pervades the universe. The whole system of reasoning from example, including analogical ■and inductive reasoning, is founded upon differences as well as upon resemblances. Or, rather, it recognizes differences as well as resemblances. Whenever two facts are alike in some of their essential elements, however widely they may differ in others, the partial analogy is sufficient to authorize the drawing of inferences and conclusions. We might take the most extensive induction that was ever framed, and we should find that all the facts used as proof therein would differ from each other in some particulars, and would differ from the final fact to be proved. All that is necessary in such a case -is that one or more of the essential elements in each of the proving facts shall be like one or more of the essential elements in the final fact to be proved. Of course there are in law exceptions to this rule. There are cases in law in which-, for special reasons, particular facts are not allowed to be proved for the purpose of proving other particular facts, or of proving some more general fact, although logically such first-mentioned particular facts would be legitimate proof of the second-mentioned particular facts, or of^the more general fact. But the present case is not one of those exceptional cases. It is not necessary that every question put to a witness shall be so broad and comprehensive th’at the answer, when taken alone, shall be evidence of some issue in the case. If all the answers to a series of questions, upon the same general subject, taken together, are competent to, and tend to, prove some issue in the case, each answer is competent; and the question tending to elicit such answer should be allowed to be asked and answered. . It often happens that it takes the answers to a hundred or more different questions, all combined, to constitute any proof of any issue in the case; and that to take out the answer to any one of the questions would destroy the whole of the evidence as proof in the case. If evidence tends to prove any material issue in the case, or if it tends to prove a link in a chain of evidence which tends to prove any material issue in the case, it may generally be admitted. This is intended to apply to the questions put to witnesses regarding other engines passing along the road where the fire occurred without causing fires. The answers to some of said questions, if taken alone, might not have been competent evidence in the case, but when connected with other answers, and the whole taken together, would be competent evidence.

There is another very important question in this case. It is whether or not the injury to the plaintiff is not too remote to constitute the basis of a cause of action. The plaintiff in error claims that under the maxim, causa próxima, non remota spectatur, that it is. The fire from the defendant’s engine did not fall upon the plaintiff’s property. Two fires were kindled by sparks emitted from the defendant’s engine, but each was kindled on land not belonging to the plaintiff, and each was kindled on land belonging to a different owner. These two fires spread, finally uniting, and then passed northwardly over the property of several other landed proprietors, and finally reached the plaintiff’s property, about three and one-half or four miles distant from the railroad track, and there did the damage of which' the plaintiff *complains. After a careful examination of this question we are satisfied, both upon reason and authority, that the damage is not too remote to be recovered. We have already decited that where the fire runs thirty rods from the place where it is first kindled, and there does the damage, the plaintiff may recover. St. Joseph & D. C. R. Co. v. Chase, 11 Kan. *47. Now, if the plaintiff 'may recover when the fire has run thirty rods, why may he not recover when the fire has run forty rods, or a mile, or four miles? Will it be claimed that the ownership of the property over which the fire runs can make any difference ? If a rick of hay should be stacked thirty rods from a railroad track, on the land of A., and if another rick should be stacked just ten rods further, on the land of B., and the fire should spread from the railroad track and first burn the rick of A., and then pass on and burn the rick of B., why should not B. recover as well as A. ? And why should not C., and D., and E., still beyond, also recover? While A. recovers for his loss, must B., and C., and others, set their loss down to a remote cause, and suffer in uncomplaining silence ? If A. should own a field of forty acres, and the whole of it should be overrun by fire, we suppose he could recover for the whole loss; then why should not B. recover for a part of the same loss provided he, instead of A., owned the furthest twenty acres from the railroad track, and the twenty acres last overrun by the fire? In the popular and ordinary sense the fire, however far it may go, is one continuous fire, — the same fire, — and is the proximate cause of all the injuries it may produce in its destructive march, whether it go one rod, or four miles. This may not be strictly the case in the philosophical sense. A spark drops and sets fire to the grass, an inch in circumference; this to another inch; this to another, and so on, ad infinitum. The spark is the cause of the burning of the first inch, the first inch of the second, the second of the third, and so on, acl infinitum. The spark falling within a rod of the railroad track is not, philosophically speaking, the proximate cause of the burning of the hay-rick thirty rods distant. It is the proximate cause *of the burning of the first inch of grass only, and the remote cause of the burning of the hay-rick. A spark could not burn a hayrick at such a great distance. In this sense the spark is an infinitely remote cause of the burning of the hay-rick. In this sense the spark could not be the proximate cause, unless it fell upon the hay-rick and directly set it on fire. Falling one rod, one yard, or even one foot from the hay-rick, would not answer.

But this sense of proximate and remote causes and effects ia not the one adopted and used by the courts. The courts use the terms in a broader and more comprehensive sense. The courts really use the terms in their ordinary and popular sense. The spark negligently allowed to escape from the engine of the defendant is, in law as well as popularly, the proximate cause of the burning of the hay-rick thirty rods, or four miles, away. The first efficient and adequate cause, as well as every intermediate cause necessarily following from the first cause, is always held in law to be the proximate cause, unless some new cause, independent of the first cause, shall intervene between the first cause and the final injurious result. This is equally true where the successive events are separated by clearer and better defined outlines than they are in the burning of prairie grass, or a stubble field. The noted Squib Case is a fine illustration of this proposition. Scott v. Shepherd, 2 W. Bl. 893. In law, proximate and remote causes and effects do not have reference to time, nor distance, nor merely to a succession of events, or to a succession of causes and effects. A wrongdoer is not merely responsible for the first result of his wrongful act, ■but he is also responsible for every succeeding injurious result which could have been foreseen, by the exercise of reasonable diligence, as the reasonable, natural, and probable consequence of his wrongful .-act. He is responsible for any number of injurious results consecutively produced by impulsion, one upon another, and constituting ■distinct and separate events, provided they all necessarily follow from the first wrongful cause. Any number of causes and effects may intervene between the first wrongful cause and the final injurious consequence; and if *they are such as might, with reasonable diligence, have been foreseen, the last result, as well as the first, ■and every intermediate result, is to be considered in law as the proximate result of the first wrongful cause. But whenever a newr cause intervenes which is not a consequence of the first wrongful cause, which is not under the control of the wrong-doer, which could not ■have been foreseen by the exercise of reasonable diligence by the wrong-doer, and except for which the final injurious consequence could not have happened, then such injurious consequence must be ■deemed to be too remote to constitute the basis of a cause of action.

But the plaintiff in error says “that if Stanford, four miles away, can recover for property lost, there is no court authorized to set a limit just where such liability shall cease, if the fire continues uninterruptedly on its journey. If he can recover it is to be regretted ■ that the sufferers by the Chicago fire have no more responsible person than Madam O’Leary to indemnify them.” “If some future Kansas simoon should drive from an engine a single spark by which the prairie was set on fire, so long as it burned without intermission the railway company would continue to be responsible, and whether the state line would end the losses, God, and the supreme courts of the adjoining states and territories, only can determine.” This is a ■ strong picture, never likely to be realized. Railroad companies do not often set fires to prairies, and they much more seldom negligently do so; and when they do, it is not often that much damage is done. But put the picture as stroug as the counsel for plaintiff in error has • drawn it, and still we see no sufficient reason why a wrong-doer should not pay for all the injurious consequences of his wrongful act. Why should not every person, whether far away or near, recover for losses sustained by reason of the wrongful acts of another ? Even if it should bankrupt the wrong-doer, would that be any reason for not compensating an innocent sufferer ? As a question of ethics and morals, as well ■ as of law, where a great loss is to be borne by somebody, who should bear it, — the innocent, or the guilty? Would it be better, more equi*table, and just, to distribute it among a hundred innocent victims than to visit it wholly upon the wrong-doer 'who caused it? Possibly, if the loss were distributed among the innocent sufferers, it would bankrupt many of them. Would that be ■more equitable and just than to bankrupt the guilty wrong-doer ? Railroad companies, however, are not so fearful of paying just claims : against them as they are of paying unjust claims. They are really ■ afraid that juries will find that they caused the fires, when in fact they did not cause them; and that juries will find that they were . guilty of negligence, when in fact they were not guilty of negligence. In the present case the railroad company was probably not guilty of negligence. But all these fears must necessarily subside as our state • grows in population, and as a more general intelligence is diffused • among the people, for then better juries may be obtained.

The views that we have expressed upon the question of proximate and remote causes and effects may not be in harmony with the following decisions, to-wit: Pennsylvania R. Co. v. Kerr, 62 Pa. St. 353; Ryan v. New York Cent. R. Co., 35 N. Y. 210; Macon R. Co. v. McConnell, 27 Ga. 481. And yet there may be enough to distinguish this case from the last two cases cited, and possibly from the ífirst. _ But we think our views upon this question are in entire harmony with reason, and with the great weight of authority both in this country and in England. See the very able and exhaustive opinion of Chief Justice Lawrence in the case of Fent v. Toledo, P. & W. R. Co., 59 Ill. 349; 4 Chi. Leg. News, 326; 1 Redf. Amer. Ry. Cas. 350. See, also^the very able and elaborate opinion of Chief Justice Dixon, delivered on a motion for a rehearing in the case of Kellogg v. Chicago & N. W. R. Co., 26 Wis. 223, 258, etseq., and •the cases cited and reviewed in these two cases. Also, see the ease •of Perley v. Eastern R. Co., 98 Mass. 414, 418, referring to and disapproving the New York case.

A few other questions in this case remain to be considered. The evidence with regard to the value of the corn was intro*duced to the jury without objection, and therefore there was no error In permitting it to go to the jury. It was competent evidence, as evidence, whether the witness was a competent witness to testify to the value of corn or not. No motion was made to strike it out, and no instruction was asked with regard to it; hence it properly went to the jury for their consideration. Even if it were afterwards shown, upon cross-examination, that the witness who testified to the value of the corn, upon his examination in chief, was not a competent witness-for that purpose, yet we should not reverse the judgment for that reason merely. If a party allows competent evidence of an incompetent witness to go to a jury without objection, he should not afterwards complain of the finding of the jury thereon. Not objecting to the evidence is substantially saying that the party is satisfied with it. But was the witness incompetent ? Simply not knowing of any sales of' corn may not have rendered the witness wholly incompetent. There may have been no sales in that region. There may have been no market value for corn there. If so, then some other criterion of value must be adopted.

It is not necessary in any case that there should be an actual market value for an article in order to entitle the owner thereof to a recovery for its destruction. Suppose a rod of railway track, or a shade tree, or a fresco painting on the walls or ceiling of a house, or a bushel of corn on the western plains should be destroyed: could there-be no recovery for these articles, simply because there might be no actual market value for the same ? The instruction of the court, with regard to the recovery for the market value of the various articles-destroyed, certainly could not have prejudiced the rights of the plaintiff in error. The instructions given by the court below we think were substantially correct. Those refused, so far as they embodied the law of the case, and so far as they were necessary in the case, were substantially given in the general charge. It must be recollected, however, that the special findings of the jury rendered some of the instructions, both given and '^'refused, irrelevant; and whether such instructions were right or wrong, the giving or refusing of them could not be substantial error. Some of the instructions given were repeated verbatim, which was not strictly correct, yet we cannot say that such a thing materially prejudiced the.substantial rights of the plaintiff in error.

The second instruction asked for by the plaintiff below, and given-by the court, is hardly as strong as the pontiff in error claims that it is. But it is pretty strong, and might in some cases be erroneous. But in this case, (upon the hypothesis that it was not engine No. 9 that caused the fire,) where all the evidence of negligence as to the engine causing the fire is one way, and against the plaintiff in error, the instruction cannot be so erroneous as to prejudice the rights of the plaintiff in error.

The fifth instruction asked for by the plaintiff below, of which the plaintiff in error complains, was not given by the court below, but. was refused, and therefore such instruction could not have materially affected the substantial rights of the plaintiff in error.

It is not necessary for us to mention more particularly the other-evidence, or the other instructions, as the remarks we have already made will sufficiently cover them.

The judgment of the court below is affirmed.

(All the justices concurring.)  