The only material question raised by these exceptions is, whether the jury were rightly instructed as to the burden of proof. The action was trespass upon the case, charging the defendant with carelessly setting fire to a coal-pit on his .own land, and not watching the same with proper care and diligence; in consequence of which neglect the fire escaped from the said coalpit, and was conveyed, by the wind or otherwise, to the plaintiff’s land, there doing the damage complained of. The court ruled, and so instructed the jury, that the burden of proof was on the plaintiff to prove that the defendant, in the burning of his coalpit, did not use due care and diligence to control the fire and prevent its escape to the surrounding lands. This ruling, we think, was very clearly correct. The action is founded on a charge of negligence, and this is the gist of the action; for the defendant had a right to kindle a fire on his own land, using reasonable care and diligence to prevent its spreading and doing injury to, the lands of others. If, then, the jury doubted as *463to the charge of negligence, they could not find for the plaintiff, and consequently the burden of proof was on him.
It has been argued, that if the plaintiff had made out a prima facie case of negligence, the burden of proof shifted, and that the defendant was bound to prove affirmatively that he had used due care and diligence. But there is no ground whatever for this argument, unless the defendant had confessed and undertaken to avoid all the material facts on which the prima facie case depended. For where each of several concurring facts is necessary to one entire cause of action, the denial of either of them is necessarily a denial of the right of action. The burden of proof, therefore, does not shift, unless the defence does not involve a denial of any material allegation in the declaration. The rule is correctly laid down in Powers v. Russell, 13 Pick. 76, 77. Where the proof on both sides applies to one and the same issue or proposition of fact, the party, whose case requires the establishment of such fact, has all along the burden of proof, although the weight in either scale may at times preponderate. But when prima facie evidence is given of such fact, and the adverse party, instead of producing proof to negative the same fact, proposes to show another and distinct proposition, which avoids the effect of it, then the burden of proof shifts and rests upon the party proposing to show the latter fact.
In actions against towns, for defects in highways, it has been uniformly decided that the burden of proof is on the plaintiff to show ordinary care on his part. Adams v. Inhabitants of Carlisle, 21 Pick. 146, and cases there cited. For the same reason, the plaintiff in this case had the burden of proof of the defendant’s negligence ; because, unless that fact was proved, it is very clear that the action cannot be maintained Exceptions overruled.