The opinion of the Court was delivered by
Willard, A. J.The action below was case for negligence in the care of property delivered to defendants for transportation, whereby such property was in part destroyed by fire.
Under the declaration, plaintiff could have recovered, though it should appear that the fire that caused the damage had not originated through the negligence of defendant, provided he made it to appear that at the time of the injury the defendants were charged with its protection, and that through want of a due discharge of this duty the property had become exposed to the fire that caused the damage.
The evidence disclosed the fact that the fire was communicated by sparks from the defendant’s locomotive engine. There was evidence tending to show that the sparks issued from the engine in consequence of defective condition of the spark-catcher. The evidence also involves a question, whether there was negligence in placing the property, or allowing it to remain, in the position it occupied relative to the engine, as amounting to an imprudent exposure. The property was cotton, and its position was on an open platform, close by the track on which the engine must necessarily pass.
The solution of these questions, in their bearing on the liability of defendants, depended, in some respect, on the question, whether they were charged with custody of the property as common carriers, or in any other character. If they were so charged, it was not necessary to trace the fire to the defective condition of their engine, provided there was negligence on their part in allowing the property to be unduly exposed to the fire. If, on the other hand, the property must be regarded as in the custody of plaintiff, then it became necessary to show that the fire originated with the defendants, through their negligence. Assuming that the plaintiff was alone responsible for -the position and exposure of the property, then it became a question, apart from the frame of the declaration, whether he was guilty of negligence that conspired to produce the damage.
*58It is impossible for us to determine, from the case before us, what view of the legal bearing of these questions of fact, raised by the evidence, was presented to the jury. It appears probable that the case was submitted to the jury as wholly depending on the question whether the defendants were liable as common carriers. This is an inference from what is said about the charge, the charge not being before us. If such was the aspect presented, then we must conclude that the verdict was based on the conclusion that defendants were common carriers. We must also conclude that the question whether the plaintiff was guilty of negligence, which conspired to produce the damage, was not passed upon by the jury, for that question would naturally arise only in the event that the defendants were held not to be responsible for the custody of the property at the time of the fire.
This ease comes to us on grounds of appeal, and the report of the Circuit Judge, in conformity with the former practice in the case of appeals to the Court of Appeals, having been tried and the appeal taken before the Code of Procedure went into operation. This mode of bringing up cases, though imposing an onerous duty on the Judge, was, when that duty was carefully performed, well adapted to the Court of Appeals, as that Court considered both matters of law and fact, and looked to the substantial justice of the case. We are, however, confined to a review of the decisions and rulings of the Circuit Judge on points of law involved in the case. If we find that there was error in the rulings, we have then to ascertain whether such error may have affected the verdict. Where the rulings or charge lay down an abstract proposition of law, its merits can generally be examined independently of the other rulings or directions given in the case, both as it regards its correctness and its pertinency to the issue in hand. But where the Judge in charging the jury applies the law to the evidence, by declaring the relative rights of the parties, in the event of the finding of a matter of fact, unmixed with any question of law, it is generally important that either the whole charge, or an outline of the view presented, should be brought before us, in order to ascertain the bearing of any particular proposition of law involved, that may be the subject of review.
The case in hand appears to be one of the latter class. This conclusion is not drawn from the statements of the report of the Circuit Judge, for that is entirely silent as it regards the directions given to the case in point of law, but is drawn from the statements in the *59grounds of appeal in view of the silence of the report on the subject. The matters of fact set forth in the report are no aid to us here, as we can only deal with questions of law.
Deriving our conclusions, then, as best we may, from the grounds of appeal, we proceed to consider the special matters presented by these grounds.
The first and second grounds involve only the correctness of the verdict in point of fact, and cannot be considered here, as we have repeatedly held.
The third ground is an alleged error, in charging that if the company refused to receive the cotton for shipment when offered by the plaintiff, they would be responsible for any damage which the plaintiff sustained in consequence thereof. The proposition is irrelevant to the case, as there was no damage shown as the result or consequence of the refusal of the defendants to receive the goods. Assuming the truth of the plaintiff’s case, the whole damage was the consequence of negligence as to the condition and use of the defendants’ engines, a cause entirely independent of the one involved in the statement of the charge. It is possible that the jury may have mistaken the bearing of this proposition, but that fact is not made out before us.
The fourth ground is as follows:
“Because, although the plaintiff, in his declaration, does not charge that the company received the cotton in the character of common carriers, his Honor charged that they might find the company liable as such for the loss of the cotton.” It is very difficult to determine what inference the jury would naturally draw from this statement, if made in the terms here laid down. They might have regarded it simply as a ruling that the plaintiff was not to be prejudiced by the want of á formal averment in his declaration, or they might have concluded that the Court had found in the case sufficient facts undisputed to warrant the legal conclusion that the defendants were chargeable as common carriers. The expression “that they might find the company liable” implied that they were at liberty to do so. If it was to be understood that under the evidence they were at liberty so to find, it was, in effect, taking the question of fact out of the hands of tbe jury, and so they would be apt to consider. In the imperfect state of the report, we cannot but conclude that the latter would be the natural inference for the jury to draw from the statement. Upon this ground there must be a new trial.
*60The fifth and sixth grounds involve matters not pertinent to the real issue before the jury. The seventh, and last, is general and not entitled to particular consideration.
There must be a new trial.
Wright, A. J., concurred. Moses, C. J., absent at the hearing.