The opinion of the Court was delivered by
Lowrxg, J.In the case of the Railroad Company v. Yeiser, all the material principles of this cause are decided except one; and that has reference to what is sufficient evidence of carelessness on the part of a railroad company in case of a fire occasioned by sparks from their engines.
Whether, in this instance, it was caused by the carelessness of the defendants’ servants, must he judged from the circumstances; and we think that the cases referred to by the plaintiff’s counsel, show clearly enough that this question, under the evidence here, is within the province of the jury: see also 1 Denio 91.
How is it possible for the Court to say, as matter of law, how many sparks, or how many fires caused by them, it takes to prove carelessness ? How can the law declare, except as a deduction from facts found, what are sufficient spark-catchers ? When we find fires started by a locomotive, at distances of 80 to 150 feet from the road, how can we say that that is no evidence of carelessness ? It is a question of fact, whether the small sparks that escape through a good spark-catcher will ignite wood at such a distance. We see wooden houses, and lumber, and firewood, and shingles standing all along the very edge of railroads without being burnt; how can we say that the happening of several fires, all about the same time, along the line of the road, is no evidence of carelessness ?
The company has paid for its right of way and for all the inconveniences which were likely to result from the construction and use of its road; but this does not cover all sorts of damage: 10 Mees. & W. 425; 15 Beav. 322, S. C. 19 Eng. L. & Eq. Rep. 295; and it cannot cover damages arising from negligence, for the law never anticipates this in assessing damages, and it never allows people to purchase a general immunity for carelessness. If it did, no railroad company could pay the price in advance. This company, therefore, must submit to have the question of carelessness tried in this case just as it is in others: 1 Vent. 295; 1 Lutw. 90; 2 Stra. 1264; 11 Qu. B. Rep. 347; 1 L. Raym. 264.
They are bound to temper their care according to the circumstances of danger, 20 State Rep. 177, and exert more care when the property of others is in danger than when it is not; and their evidence will he tried by this rule. And if there be evidence of carelessness, the means of rebutting it are so entirely in the de*375fendants’ power, that it is not unreasonable to expect from them that their evidence shall be very complete.'
Judgment reversed and new trial awarded.
Black, C. J., dissented.