that it was in-
cumbent on the plaintiff to establish the fact to the satisfaction of the jury, that the defendants set fire to the plaintiff’s barn by sparks emitted from their engine. And that if he failed to establish that fact, he could not recover. That, even if the plaintiff established that fact, still it remained also necessary for him to show by satisfactory proof, that the firing and destruction of the barn resulted from the carelessness or negligence of the defendants, their agents or servants. That the defendants were not answerable under all circumstances, or at all events; but were only answerable for their own default—that is, they were only answerable in such a case, for want of due care, skill, or diligence, in the transaction of their lawful business, and in the use of their engines in it,'to prevent such accidents. That if the defendants on the occasion in question, had adopted the usual precautions in supplying their engines with such spark-catchers, as were in general use for preventing the escape of sparks, and employed competent engineers to manage their engines, and the engineers used reasonable care and diligence in the management of them, then the defendants did all that either the law, or enlightened reason required of them in such case. That the defendants had an unquestionable right to operate the road by engines propelled by steam generated, of course, by fire. That they were, therefore, in the lawful exercise of that right; but they were bound, at the same time, to use that right with due care and caution in respect to the rights and property of others. That if the defendants used *456clue care and caution in the running of their engines, and yet unfortunately the barn of the plaintiff was set on fire by sparks emitted from their engine and destroyed, the plaintiff would not be entitled to recover for the loss sustained by him, because the defendants, under such circumstances, would be without fault. That, as the case stood, negligence was a question of fact to be decided by the jury, according to the weight or preponderance of the evidence. That the sheriff’s jury which assessed the damages under the writ of ad quad damnum in the year 1838, had no power or authority to make a legal contract by their return, between the owners of the land and the defendants, imposing upon the former a legal obligation to remove the barn; but the jury, in case they should be of the opinion that the plaintiff was entitled to recover, might, in determining the amount of their verdict, take into consideration the fact which had been proved in the case by the receipts and guardian accounts of the guardian of the plaintiff, that the sum of $883. had been paid by the defendants to the said guardian in the year 1838, which sum the plaintiff and his co-heirs had got the benefit of, the same having been carried to their credit in said accounts, for the express purpose of “ removing the bam out of the way of danger from fire from the engines.” . That whilst it was certainly true, as a general proposition, that a party who by his own negligence, contributes to the injury of which he complains, is held to be culpable and without remedy, yet the court could not apply this general rule in all its stringency to the case before them, and say that the mere omission of the plaintiff to repair or renew the roof of his barn, amounted to such a contributing to the injury, as to exempt the defendants from the necessity of using due care and diligence to prevent the communication of fire to the barn. That the proof before the jury disclosed the facts, that the roof of the barn was a very old roof—that at the time the fire was discovered, it was about the size of the witness’ two hands—that when the witness was inside of the barn throwing water against *457the roof to put the fire out, the smoke was coming through the roof, and that the witness could see the fire through the roof, it was so open. That the jury could, from these facts as deposed to by the witnesses, if they believed them to be true, form a pretty correct idea of the condition of the roof. And that whilst the court could not say that the omission of the plaintiff to repair or renew the roof, exempted the defendants from the necessity of using reasonable care and diligence, yet the jury in assessing the damages, might take into consideration the condition of the roof at the time the fire occurred, and also the fact that the plaintiff might have lessened the hazard or danger from sparks, by having made proper amendment of the roof, if the negligence of the defendants was the main and immediate cause of it under all the facts and circumstances proved.
The plaintiff had a verdict for $2500.