Defendant was the owner of a steam traction engine, an engine made and used for power to run a threshing machine. He was employed by plaintiff to thresh grain in plaintiff’s field. He entered the field with his engine and threshing machine, threshed the grain, finishing about noon, when he removed the machine by drawing it through plaintiff’s field with the engine. Shortly after the engine had passed out of the field plaintiff’s meadow and hay ricks were discovered to be on fire from which considerable damage rer suited to plaintiff in the loss of his hay and grass. No one saw the fire start, or had personal knowledge of how it originated. The trial court by instructions to the jury applied the rule governing in this "and many *38other states as to fires caused by passing railway engines, viz., the mere fact that fire did escape from the engine and destroy plaintiff’s property would authorize the jury to presume or infer negligence on the part of defendant, and that the burden lay upon the defendant to disprove the inference. The verdict was for plaintiff and the defendant’s appeal challenges the correctness of the instructions.
Nfi°eíGburfeÁ of lio°ns.: excep" In our opinion defendant’s objection to the foregoing view is well taken. The general rule is that when negligence is the foundation of a claim for damages the party alleging it must prove it as he would in other instances prove affirmative matter necessary to make his base. But, as before intimated, it has been determined in this state, and is now well understood, that in cases against railway companies for fires resulting from passing engines, the sole fact of fire escaping from the engines and destroying property is sufficient to authorize a finding of negligence, unless negligence is rebutted by the railway company. Otis v. R’y, 112 Mo. 630. This view is, however, not the rule; it is the exception, and has been adopted from the necessity of the situation in such cases. It was announced at least as early as Fitch v. R’y, 45 Mo. 322. But in that case the inability of a plaintiff to make affirmative proof of the condition of a locomotive engine which had set the fire was a controlling influence with the court in stating the exception. The court said that: “The farmer, along whose fields the train flies, from the nature of the case can know- nothing about these things. He can not know the engine, nor can he tell the contrivances needed, used or neglected. All that he can, in most cases, show, is that the fire escaped and destroyed his property.” This exception is no more than another instance of the rule, *39adopted from necessity and convenience, of throwing the onus on him who has proof of the fact in his hand, which is not accessible to the opposite party. The reason which supports the exception and places the burden of exculpation on the defendant, instead of inculpation on the plaintiff does not apply to the case at bar. The traction engine, now a common piece of agricultural machinery, is, for all practical purposes of observation, about as well understood by one farmer as another, at least the particular one which does the injury can be gotten at and its construction and management ascertained. In short, there is no reason applicable to such machinery, its use and management, which ought to excuse a complaining party from making proof of the negligence which he charges has' destroyed his property.
This case coming within the general rule and not the exceptions we find the law to be that the mere fact that property is destroyed by fire lawfully made, .does not raise the presumption, or authorize the inference, that it was done through negligence of the party who kindled or controlled the fire. The burden in such cases, is on the plaintiff to prove the negligence. Wharton on Neg., sec. 867. The case of Catron v. Nichols, 81 Mo. 80, we believe to be in point on the question. In that case the trial court refused to apply the rule governing cases of fires set out by railway engines and the plaintiff made the refusal an assignment of error, in the supreme court. That court approved of the action of the circuit court; Judge Hough, stating in the course of the opinion that railway cases were exceptions to the rule and that when the reason for the exception ceased, no cause existed why the general rule should not apply.
In the ease before us the fire was built in the engine for the lawful purpose of threshing plaintiff’s *40grain and at his suggestion and under his employment. It was lawful and proper to use the fire in the engine for the purpose of propelling it and the thresher off the premises and no liability can attach to the defendant unless there was negligence in the construction or management of the machine and this the plaintiff should prove by proper evidence.
idenceTjury. II. The character of proof necessary to justify a submission of plaintiff’s case to the jury will perhaps arise on retrial and we will therefore add that evidence tending to show the machine was propelled through the field when the fire originated, by use of fire and steam in the engine; that shortly after passing through, the fire was discovered with signs of its having started near where the machine passed; and that scorched or partly burned chips, such as were used in the engine, were found in its track through the premises; and that no other cause of the fire existed, will be sufficient evidence of the ultimate fact to be ascertained to justify a submission to the jury. It has always been held in railroad cases in this state that the plaintiff must prove that the fire was started by escaping, in some manner, from the engine, and to prove this, it has been held that evidence of the character indicated was sufficient. Kenny v. R’y, 70 Mo. 243; Torpey v. R’y, 64 Mo. App. 382.
The judgment will be reversed and the cause remanded.
All concur.