
    CHICAGO, R. I. & G. RY. CO. v. MYERS.
    (No. 823-4513.)
    (Commission of Appeals of Texas, Section A.
    June 16, 1926.)
    1. Railroads <©=>455.
    Use of any ordinary fuel, including coal, to produce fire, to operate steam locomotive, is lawful.
    2. Railroads <©=3453.
    Railroad is under duty to exercise due care to prevent communication of fire by sparks from its locomotive to property of others.
    3. Railroads <§=>480(1).
    No presumption of negligence arises from fact that sparks are generated by use of coal in locomotive.
    4. Railroads <©=>480(2) — Fire set by sparks escaping from locomotive raises prima facie presumption of negligence.
    Fire set by escaping sparks from locomotive raises prima facie presumption that railroad did not exercise reasonable care, since facts as to exercise of care are peculiarly within knowledge of railway.
    5. Railroads <©=>480(2).
    Setting of fire by sparks escaping from locomotive raises presumption of negligence only in preventing escape of sparks, and not in their generation, character of fuel used, or size of sparks.
    8. Railroads <©=>480(3) — Presumption of negligence arising when fire is set by sparks from locomotive is rebutted by proof of proper construction, management, and equipment.
    Prima facie presumption of negligence arising when fire is set by sparks escaping from locomotive is rebutted by proof that locomotive was, at time, of proper construction, prudently handled, and equipped with most approved devices, in good repair, to prevent escape of sparks.
    7. Railroads <©=>480(2).
    Fire set by sparks escaping from locomotive does not raise presumption that railway was using improper grade of fuel or was negligent in using kind of fuel it did.
    Certified Questions from Court of Civil Appeals of Second Supreme Judicial District.
    Suit by A. J. Myers, Sr., against the Chicago, Rock Island & Gulf Railway Company. Judgment for plaintiff, and defendant brings error. On certified question.
    Question answered.
    See, also, 264 S. W. 151.
    Albert Baskin and- Lassiter, Harrison & Pearson, all of Fort Worth, for plaintiff in error.
    Hood & Shadle, of Weatherford, for defendant in error.
   HARVEY, P. J.

This is a suit brought by Myers, as plaintiff, against the Chicago, Rock Island & Gulf Railway Company, as defendant, for damages on account of the destruction of certain buildings of the plaintiff by a fire which was set out by sparks emitted from a certain steam locomotive of the defendant company while same was being operated along the line of the defendant’s railroad. Among the grounds of negligence alleged in the plaintiff’s petition, it is alleged that the setting out of the fire was caused by the negligence of the railroad company in using in said locomotive at the time “an improper and unsuitable grade of coal and said coal caused sparks and cinders of fire to be emitted” from the locomotive, which sparks and cinders set out the fire in question. Upon the trial it . was proved by the plaintiff that said fire was set out by sparks that escaped from said locomotive. The testimony, on the part of the railroad company, was to the effect that said locomotive was properly constructed and equipped with the most approved appliances to prevent the escape .of sparks, and same were suitable for the 'purpose and in good repair; and that the locomotive was handled skillfully and prudently to avoid the emission of sparks. This testimony was not contradicted by any witness. It was also proved that “Bridgeport” coal was being used as a fuel in said locomotive at the time said fire was set out. There was no evidence, from any source, that “Bridgeport” coal was of an inferior grade, or that it emitted more sparks than other coal; nor did the defendant introduce any evidence to show that it was a proper or suitable grade of coal for use in railway locomotives.

The question certified by the Court of Civil Appeals relates to the correctness of the action of the trial court in refusing'to give in charge to the jury a certain requested instruction specially requested by the defendant. The precise question of law raised by the action of the trial court in refusing such requested instruction and involved in answering the certified question herein is whether or not, upon the fact being proved that the fire in question was set out by sparks that escaped from said locomotive, there arose a presumption of fact from which the jury were authorized to determine that the coal being used at the time, as a fuel in said locomotive, was of unsuitable and improper grade, as alleged by the plaintiff, and that the railway company was guilty of negligence in that respect. According to the certificate of the Court of Civil Appeals, if such presumption arose from the proof that was made of the fact that said fire was set out by sparks from said locomotive, the action of the trial court in refusing the requested instruction was correct ; but if such presumption did not so arise, then the refusal of the requested instruction was error. We shall therefore consider the question of law, as stated above, which is necessary to he determined in making answer to the question certified.

The use of fire by railway companies for the purpose of operating their steam locomotives is lawful. In producing such fire, it is lawful for them to use any ordinary fuel fit for the purpose, including coal. Lackawana & B. R. Co. v. Doak, 52 Pa. 379, 91 Am. Dec. 166. The duty, however, rests upon them to exercise due care to prevent the communication of the fire to the property of another. The burning of coal, of whatsoever grade, naturally generates sparks, as a necessary incident. The generation of sparks, being a necessary consequence of the use of coal of any grade as a fuel, cannot be ^.voided by human skill; therefore no presumption of negligence arises from the mere fact that sparks are generated. For if such a presumption were indulged, the ultimate effect would be to render the use of coal as a fuel in steam locomotives presumptive negligence. Ordinarily, however, the escape of sparks, with resulting damage to another’s property, may be avoided by reasonable care and skill, which fact forms a basis for a prima facie presumption that reasonable care and skill is wanting, whenever sparks escape and set fire to property; the reason, for indulging the presumption in such case being that the facts as to such care and skill are peculiarly within the knowledge of the railway company.

Our courts, in many decisions, have said, in a general way, that the mere fact that fire is set out by sparks escaping from a railway locomotive raises a presumption of negligence on the part of the railway company. But we have found no decision of this state, or of any other state of the Union, which makes application of such presumption to the act of generating sparks by the use of coal of any grade as a fuel.

A fair deduction from all the decisions leads to the conclusion that the only respect in which a railway company is presumed to be negligent, from the mere fact that fire is set out by sparks escaping from its locomotives, is in causing or not preventing the escape of such sparks. That the presumption of negligence in such a case relates only to the escape of the sparks, and not to their generation, or • the character of fuel used, or the quantity, size, or quality of the sparks generated, is shown by the uniformity with which the courts of the country define the proof necessary to rebut such prima facie presumption of negligence. Wherever the courts have seen fit‘to give an expression on the subject, they have declared, in substance and effect, that such prima facie presumption of negligence is rebutted when the railway company has proved that the locomotive that set out the fire complained of was, at the time, of proper construction and prudently handled to avoid the emission of sparks; and was equipped with the most approved devices and appliances, adapted to the particular kind of fuel being used, to prevent the escape of sparks; and that same were in good repair and condition. Railway Co. v. Benson, 69 Tex. 409, 5 S. W. 822, 5 Am. St. Rep. 74; Martin v. Ry. Co., 87 Tex. 120, 26 S. W. 1052; 11 Ruling Case Law, p. 991; 33 Cyc. pp. 1335-1384; 2 Thompson’s Commentaries on Negligence, § 2234.

No court, so far as we have been able to discover, has required a railway company, in order to rebut such prima facie presumption of negligence in such a case, to go further than- to prove that the escape of the sparks which set out the fire was not the result of the company’s negligence in that respect.

We conclude that the mere fact that fire was communicated to the property of Myers by sparks escaping, from, the defendant’s locomotive does not raise the presumption that the railway company was using an unsuitable or improper grade of fuel or was negligent in using the kind of fuel it did.

In our opinion the trial court committed error in refusing to give the requested instruction mentioned in the certificate, and we recommend that the question certified be so answered.

OURETON, C. J.

Opinion of the Commission of Appeals answering certified questions adopted, and ordered certified to the Court of Civil Appeals. 
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