*204Dissenting Opinion.
Emery, J.While a steam locomotive of the defendant railroad company was in lawful operation, drawing a train of cars, sparks escaped from it setting fire to the plaintiff’s property. Despite the able reasoning of the majority opinion and the citations in support of it, I am unable to assent to the proposition that this escape of sparks, nothing further appearing, is sufficient evidence to establish negligence in the equipment or operation of the locomotive. I think there is danger in the proposition justifying me in attempting to show reasons against it.
I. Apart from authority, the proposition seems to be based on the assumption that locomotives are ordinarily so equipped and managed as not to set fire to property along the route. The argument seems to be that the setting of fires by sparks from a passing locomotive is exceptional, and therefore indicates some fault in equipment or operation. I deem the argument faulty in that it deals with the setting of fires instead of the escape of sparks; confounds the consequences, which may or may not ensue, with the act which is the subject under consideration. While the setting of fires by them may be very exceptional, the escape of sparks may nevertheless be of daily and hourly occurrence. Sparks may or may not set fires after their escape according to events and conditions entirely outside of the railroad company’s sphere of action or duty, as high winds, severe droughts, etc. Whether a given act or omission is negligent is not determined by its consequences. So whether a primary result is evidence of negligence is not determined by a secondary result. The negligence of the defendant, if any, was in the act or omission through which the sparks escaped, not in the escape itself. Hence while the setting of fires may be evidence of the escape of sparks, it is not evidence of the cause of that escape, whether from accident or negligence.
It would seem to follow that the assumption, however indisputable, that locomotives are ordinarily so equipped and operated as not to set fires does not sustain the proposition that the escape of sparks from a passing locomotive indicates fault in equipment or operation.
*205I think to sustain the proposition the assumption must be as broad as this, viz: that locomotives can be so equipped with known appliances and so operated in known modes that sparks will not ordinarily, or often, escape from them while in operation. There being no evidence whatever in the case upon this point, the assumption must be from common knowledge so common and undisputed that the court can act upon it without evidence. If the assumption has not this foundation it must fall, and the argument with it.
Is it common knowledge, and undisputed, that such appliances exist and that such modes of operation are known? I must confess my own ignorance of them. I do not understand it is claimed to be knowledge so common and undisputed; and whoever will observe the amount of cinders strewing the sides of railroad tracks and will observe the smoke stacks of locomotives running at night will find, I think, much evidence to the contrary.
II. As to authorities; it is frankly admitted in the opinion that no case in this state has gone so far. It is also frankly admitted that eminent courts hold adversely to its view, while claiming support in the decisions of many other courts. Cases are cited in such support from Illinois, Wisconsin, Texas, Missouri, Tennessee, Alabama and California. I will not stop to inquire how far these decisions have been influenced by the statutes of those states or by other circumstances, nor will I burden the reader with citations of cases the other way, for I think the proposition is in conflict with the declarations and even decisions of our own court. In Sturgis v. Robbins, 62 Maine, 289, a case of fire escaping and causing injury, the court said on page 290, “It is not to be presumed that an act lawful in itself was not done at a suitable time and in a careful and prudent manner.” In Nason v. West, 78 Maine, 253, the coiirt said on page 256, “Presumption of negligence from the fact alone that an accident happened, will not do, for if there is any presumption in such a case it is that the defendants have complied with the obligations resting upon them equally with other men.” In Pellerin v. Paper Co., 96 Maine, 388, the court on page 391 quoted the above expression from Nason v. West, and added, “No presumption of negligence arises from the *206mere fact that an accident has happened.” In Leach v. French, 69 Maine, 389, the court said on page 393, “negligence and mis-doing are not to be presumed; there must be positive evidence of them.” In Lowney v. Railway Co., 78 Maine, 479, a case of fire communicated by a locomotive, the court said on page 480, “The burden upon the plaintiff therefore was, to prove, not only that the fire was communicated by the engine, but also that the defendants were* guilty of negligence and that their negligence was the cause of the communication of the fire. The communication of the fire alone does not import negligence.” This seems quite an explicit declaration and intentionally made. It is sought to distinguish the two cases, but I think the reader of both opinions will be convinced that the court in the Lowney case was pressed with the same proposition, and' considered it and intentionally pronounced against it. It will hardly be suggested that the concurring justices would have permitted such an explicit declaration to pass them unchallenged if they did not fully agree with it.
But, further, I think the court has also expressly and necessarily adjudicated upon the principle involved. Batchelder v. Heagan, 18 Maine, 32, was, like this, a case of escaping fire, where fire lawfully upon the land of the defendant, but which he was by law bound to carefully guard and manage to prevent its escape to the lands of others, did escape to land of the plaintiff and set fire there. It was stoutly contended in that case, as in this, that the escape of the fire alone, if unexplained, was evidence of the defendant’s negligence in the premises. The court squarely held that it was not. Sturgis v. Robbins, 62 Maine, 289, was a similar case. The fire set by the defendant on his own land had escaped therefrom and set fire to property of the plaintiff. The plaintiff’s counsel in effect advanced the same proposition, to wit: — that the mere escape of the fire indicated that the defendant was in fault either in the time or manner of building his fire, which he must disprove or be held liable. The court held directly the contrary.
I do not find that either of these cases has since been questioned though the escape of fire from lands and locomotives has been of frequent occui'renee. They seem to me not distinguishable in principle *207from the case at bar. The defendant company had the right (as good as that of the farmer) to build and maintain fires in its locomotives as they lawfully passed by and near the plaintiff’s buildings. In this particular case it was not bound as an insurer but only bound to use due care to prevent the escape of the fire. If the escape of fire from the land of the farmer does not indicate fault in him which he must disprove, I do not see how the escape of sparks from the running locomotive of a railroad company indicates fault on its part which it must disprove.
III. But the majority opinion seems also to be based on the difficulty of the plaintiff in such cases as this, in finding any other sufficient evidence of the defendant’s negligence. It seems to be urged that it is so much easier for the defendant to prove that it was careful than for the plaintiff to prove that it was careless, it should be required to do so. Is not this in effect equivalent to saying that whenever the plaintiff cannot prove the defendant’s fault in a matter, the fault should be assumed and the burden be put upon the defendant to prove his innocence? How can this doctrine be limited, without obnoxious discrimination, to actions against railroad companies? Why is it not equally applicable to every case where the court thinks it easier for the defendant to prove his innocence, than for the plaintiff to prove the fault or wrong? Is it not destructive of the presumption of innocence which has hitherto protected persons accused of negligence or any other tort or crime?
I think this court has never before intimated any approval of such a doctrine as applicable to a case where fault is necessary to be shown. In the case, Dunning v. M. C. R. R. Co., 91 Maine, 87, cited in the opinion, no fault was to be proved. The company was an insurer. It was only necessary to prove the communication of fire from the locomotive.. Here it was necessary to prove that, and also the defendant’s fault in the matter. On the other hand, the court seems to have been pressed at times with the argument that when circumstances render affirmative proof of some essential element in the plaintiff’s case difficult or impossible, the court should assume it to exist unless disproved; yet the court, while sometimes recognizing the hardships, has never dispensed with the proof. McLane v. Perkins, 92 Maine, 39, and cases already cited.
*208The legislature, upon whom such arguments should be urged rather than upon the court, can meet the difficulty by imposing liability as insurer instead of mere liability as wrong doer. It has done so in the case of fires communicated by locomotives, and has thus relieved persons injured by such fires from the burden of proving the fault of the owner or operator. It is competent and I think expedi- . ent for the legislature to do so; but it seems to have left this plaintiff under the circumstances of this case to prove the fault of the company as a prerequisite to recovery of damages from it. I think, therefore, the court should continue to hold in this case as it held in Bachelder v. Heagan, and Sturgis v. Robbins, supra, and as it at least declared in Lowney v. Railway Co., supra, that the mere escape of fire, lawfully upon the defendant’s property serving him in a lawful business, is not evidence of his fault; that the difficulty of proving his fault does not cast upon him the burden of disproving it.