delivered the opinion of the court:
The plaintiff below (the respondent here) had his houses and other property destroyed by fire from the engines of the defendant below (appellant here) and having obtained judgment, the defendant has brought the cause to this court.
The court below discharged twelve jurors for the term, for *523the reason that the counties in which they resided had been detached from the Third Judicial District and added to the First, by an act of the Territorial Legislature. The appellant alleges this to have been error, for the reason that George W. Emery, who approved the act, was not Governor at the time. We do not deem this a material question. The jurors had been discharged before this case was called, and no exception had been taken to their discharge, nor do we think there could have been in this case.
When this case was called for trial the persons discharged were not jurors, and the court, after having discharged them from service in court, could not, upon a motion, order that they be again placed upon the panel. After their discharge, they could again be put upon the panel only in the way pointed out by the act of Congress. (An Act in relation to Courts and Judicial Officers in the Territoiy of Utah, approved June 28, 1874.) That is, by being again entered upon the jury list prepared at the beginning of a subsequent year, and being drawn for jury service in the manner therein prescribed. Besides, to excuse a juror before he is called upon a particular case, is within the sound discretion of the court, and we do not think it was an abuse of discretion for the court to excuse from the panel of jurors summoned for the term, such as he believed would make the verdicts of doubtful validity, especially as the remaining jurors, who composed the jury in this case, were unexceptionable.
It is urged that the court below erred in ruling that witness Anderson, might, from a list of the property which did not, except in part, as appellant contends, refresh his memory, read the valuations of the property made by himself recently after the fire. Witness Anderson did not fully comprehend the English language, as is apparent from the manner of his giving testimony; but, taking his testimony altogether, it seems that he fully complied with the rule which would entitle the said list of property to be read in evidence. That he did not introduce it in evidence does not prevent his using it to re*524mind him of the facts, and to read to the jury in connection with his testimony. He was subject to cross-examination upon it. He remembered to have made the list some two days after the fire, and at the earliest moment, that the same was correct when made, although he did not recall now the facts noted. He remembers that he knew all the facts when the list was made and that they were correctly stated then from personal knowledge. All these facts, as it seems to us, appear from his testimony.
It is claimed that respondent did not show negligence on the part of appellant, and that it was necessary that he should show this fact. The statute under which this action seems to be brought, says that “any company constructing or operating lines of railroad in this Territory, shall be liable for all damage which may be sustained through destruction of property caused by fire communicated from their locomotive engines.” (C. L. § 503, p. 217.) Under this statute, when the proof is made of the destruction of property by fire communicated from the engines, negligence is presumed until the contrary appears. The proof of such destruction made a prima facie case, and the burden was then upon the defendant (appellant) to show that there was due caution and diligence on its part, and that the fire was not the result of its negligence. But, if negligence were necessai’y to be shown, it seems that this was done, and that sufficient care was not practiced. See transcript, pp. 14, 15. Grand Trunk R. R. Co. v. Richardson, 1 Otto, 469, 470.
The refusal to give the eleventh request' asked for by appellant was not improper. The appellant-says, in its brief, that “ the statute does not make the railroad company liable for a destruction of property by fire carried from the engine, but only when the fire is communicated.” The distinction is too refined. If the fire was carried from the engine by the winds to the grass and weeds, and thence to the ]>roperty of respondent, there was a communication of the fire from the engine, as contemplated by the statute.
*525There was no error in refusing the seventeenth instruction, asked by appellant. It was misleading, especially the last two lines. There was no evidence of a “ secondary result from the first consequence,” unless reference was had to the communication of the fire from one object to another after it left the engine, and if reference was had to such matter as a “ secondary result,” then the request was not a correct statement of the law governing the case, for, under the statute, the company was as responsible for such “ secondary result ” as for the “ first consequence,” the only question being as to whether such secondary result was caused by fire communicated from the appellant’s engine.
Upon the whole case we see no error, and the judgment of the court below is, therefore, affirmed, with costs.
HuNtek, C. J., and EmebsoN, J., concur.