It may be safely asserted as a rule that "a man who negligently. sets fire on his own land, and beeps it negligently, is liable to an action at common law for any injury done by the spreading or communication of the fire directly from his own land to the prop erty of another, whether through the air or along the ground and whether he might or might not have reasonably anticipated the particular manner and direction in which it is actually communicated ;" Higgins v. Dew ey, 107 Mass. 494, 90 Am. Rep. 63 ; Hays v. Miller, 70 N. Y. 112 ; Krippner v. Biebl, 28 Minn. 139, 9 N. W. 671; Jesperson v. lips, 46 Minn. 147, 48 N. W. 770; Needham v. King, 95 Mich. 303, 54 N. W. 891; Cleland v. ThOrnton, 43 Cal. 437. Where one negli gently allows fire to escape from his prem ises and in an action for damages, for loss resulting therefrom, asserts that a sudden shift of the wind caused the fire to spread, he must show that it was extraordinary ; Mahaffey v. Lumber Co., 61 W. Va. 571, 56 S. E. 893, 8 L. R. A. (N. S.) 1263. One ac cidently but not negligently firing his house is not liable for the spread of the fire by wind ; Pennsylvania Co. v. Whitlock, 99 Ind. 16, 50 Am. Rep. 71; Beckham v. Ry. Co., 127 Ga. 550, 56 S. E. 638, 12 L. R. A. (N. S.) 476. The spreading of a fire does not raise a presumption of negligence; Catron v. Nichols, 81 Mo. 80, 51 Am. Rep. 222 ; if there was none •in starting it ; Merchants' Wharf boat Ass'n v. Wm. Wood & Co., 64 Miss. 661, 2 South. 76, 60 Am. Rep. 76 ; Read v. It. Co., 44 N. J. L. 280. As to setting fire and re straining it, the rule is that ordinary pru dence, honest motives, in the one, and due diligence as to the other, exempt one from liability ; Hanlon v. Ingram, 3 Ia. 81; and the burden of proof is on the plaintiff ; Bachelder v. Reagan, 18 Me. 32.
The owner of a threshing machine is bound to use the safest spark arrester and not merely one in common use ; Martin v. McCrary, 115 Tenn. 316, 89 S. W. 324, 1 L. R. A. (N. S.) 530.
The right to operate a railroad includes the use of fire in locomotives ; Philadelphia & R. Co. v. Schultz, 93 Pa. 341; Babcock v. R. Co., 140 N. Y. 308, 35 N. E. 596 ; and, every reasonable precaution has been observ ed to prevent injury, the railroad company will not be liable ; Baltimore & S. R. Co. v. Woodruff, 4 Md. 242, 59 Am. Dec. 72 ; yet it must show the absence of negligence on its part, at least so far as concerns safety of construction and care in the operation of its locomotives, and the freedom of the track from combustibles (see infra); Webb, Poll. Torts 561, n. ; Eddy v. Lafayette, 49 Fed. 807, 1 C. C. A. 441; Jefferis v. R. Co., 3 Houst. (Del.) 447 ; Edrington v. Ry. Co., 41 La. Ann. 96, 6 South. 19; Hagan v. R. Co., 86 Mich. 615, 49 N. W. 509. In some states this burden is put upon the company by statute ; Annapolis & E. R. Co. v. Gantt, 39 Md. 115; Small v. R. Co., 50 Ia. 338 ; Chicago & A. R. Co. v. Clampit, 63 Ill. 95; and in others by decisions adopting the rule ; Camp bell v. R. Co., 58 Mo. 498; Wiley v. R. Co., 44 N. J. L. 247 ; Lawton v. Giles, 90 N. C. 374; Burlington & M. R. R. v. Westover, 4 Neb. 268; Hull v. R. Co., 14 Cal. 387, 73 Am. Dec. 656; in other states the plaintiff must fix upon defendant both the origin of the fire, and negligence in one of the points re ferred to ; Garrett v. By'. Co., 36 Ia. 121; Indianapolis & C. R. Co. v. Paramore, 31 Ind. 143 ; Flinn v. R. Co., 142 N. Y. 11, 36 N. E. 1046 ; Grand Trunk R. Co. v. Richard son, 91 U. S. 454, 23 L. Ed. 356. But the owner is, in the absence of statute, held to the duty of ordinary care, and his negligence will defeat recovery; Marquette, H. & 0. R. Co. v. Spear, 44 Mich. 169, 6 N. W. 202, 38 Am. Rep. 242; or if the spreading of the fire was due to the negligence of the servants of the owner there is no liability ; Illinois Cent. R. Co. v. McKay, 69 Miss. 139, 12
South. 447. It has been held that the fact that fire has been communicated by a pass ing locomotive is prima facie evidence of negligence ; Wise v. R. Co., 85 Mo. 178 ; Union Pac. R. Co. v. Keller, 36 Neb. 189, 54 N. W. 420; Mobile & 0. R. Co. v. Gray, 62 Miss. 383; Wabash R. Co. v. Smith, 42 III. App. 527; Niskern v. R. Co., 22 Fed. 811. See 11 L. R. A. 506, note. The company must exercise as great a degree of care to protect the public from injury by fire as is required in favor of its patrons ; Babcock v. R. Co., 67 Hun (N. Y.) 469, 22 N. Y. Supp. 449; and the failure to provide the best appliances to prevent injury to property by fire is want of ordinary care ; Watt v. R. Co., 23 Nev. 154, 44 Pac. 423, 46 Pac. 52, 726, 62 Am. St. Rep. 772 ; contra, Paris, M. & S. P. R. Co. v. Nesbitt, 11 Tex. Civ. App. 608, 33 S. W. 280; but see Gulf, C. & S. F. R. Co. v. Reagan (Tex.) 32 S. W. 846, where it was held that the rule is that the company is only bound to exercise due care with respect to provid ing the best appliances. See Babcock v. R. Co., 140 N. Y. 308, 35 N. E. 596; Flinn v. R. Co., 142 N. Y. 11, 36 N. E. 1046 ; where it was held that compliance with a statute re quiring a guard against the emission of sparks, except during certain months, does not exempt the company from the exercise of that care to which they are bound in law, to avoid injuring the property of their neigh bor ; T. & 0. C. Ry. Co. v. Wickenden, 11 Ohio Cir. Ct. 378.
A question, the settlement of which has caused much litigation, was whether a rail road company was liable for damage to prop erty not adjoining the track, nor set on fire directly from the locomotive, but by the spreading of the fire from the property first ignited. The rule now firmly established is that the company is liable for such injury naturally and by the ordinary course of events resulting from the fire started by the locomotive ; Hooksett v. R. R., 38 N. H. 242 ; Martin v. R. Co., 62 Conn. 331, 25 Atl. 239; Pratt v. R. Co., 42 Me. 579; Perley v. R. CO., Mass. 414, 96 Am. Dec. 645 ; even where the property was at a considerable distance from the track ; C. P. 98 ; s. c. 6 id. 14 ; Hoyt v. Jeffers, 30 Mich. 181; or if several owners intervene; Hart v. Western R. Corp., 13 Mete. (Mass.) 99, 46 Am. Dec. 719 ; Mahaf fey v. Lumber Co., 61 W. Va. 571, 56 S. E. 893, 8 L. R. A. (N. S.) 1263.
The stubborn resistance to the establish ment of this rule and its extended discussion by the courts of so many jurisdictions is ac for by the fact that early decisions in New York and Pennsylvania were made the basis of strong contention against it in every state when the question first arose. Ryan v. N. Y. C. R. Co., 35 N. Y. 210, 91 Am. Dec. 49, and Pennsylvania R. Co. v. Kerr, 62 Pa. 353, 1 Am. Rep. 431, where the cases sustained the position that where the fire communicated from the sparks to a house near the track, and thence extended to another at a distance, the company was not liable for the loss of the latter, notwithstand ing its negligence in allowing the sparks to escape. In the New York case it was deter mined that the negligence was too remote, and the injury not the natural and probable result ; but later in the same court, in an action against a railroad company for ,fire, resulting from the ignition of a tie by coal from a locomotive, an effort was made to distinguish the case, and it was held that the question of proximate cause was properly left to the jury ; Webb v. R. Co., 49 N. Y. 420, 10 Am. Rep. 389. It was further shaken (usually upon the idea of distinguishing it), in Lowery v. Ry. Co., 99 N. Y. 158, 1 N. E. ,608, 52 Am. Rep. 12 ; and its weight as au thority practically ended by O'Neill v. Ry.