The opinion of the court was delivered by
Mr.. Justice McGowan.This action was brought to recover damages for twelve bales of cotton burned at Gaffney City on November 2d, 1879. The allegation was that the fire was produced by a spark from an engine of the defendant corporation, and the cotton consumed by their “ careless, negligent and unskillful management.” The cotton had not been received by the company, nor had there been any order to ship it. The owner had placed it on a platform, which, with the consent of the company, had been built adjacent to the side track of the railroad by the municipal authorities of the town of Gaffney, who retained control of it and established there public scales, -which weighed all the cotton purchased at that point; but .on the day of the fire there was no guard or watchman on duty to look after the cotton placed there..
At Gaffney, there is a side track of the defendant corporation near the main track, both running an easterly course from the direction of Spartanburg, the side track being north of the main track. The platform was west of the depot, a few feet from the side track. A street of the town crossed the railroad, and there was ample room for a train to stand on side track west of said street, the distance from clearing post to street being two hundred and eighty feet. About three hundred and fifty bales of cotton were burned, part of it on the platform and part on the ground. Some of this cotton had been receipted for by the company, and that they have paid for.
On the day the cotton was burned, the depot employes of the company were absent. On that day two passenger trains stopped at Gaffney, as they were in the habit of doing. The eastward bound train first came on the track, put out passengers, backed out and switched off on the side track. The westward bound train then stopped for a few minutes and passed on. The other train then backed, switched on to the main track, took on board the passengers and left for Charlotte. For a month previous the weather had been very dry, and on the day of the fire there was a brisk wind blowing from the southwest to northeast. There was conflict of testimony as to the precise point to which the engine went on the side track, and as to the time which *54elapsed after the train- left, before the fire was discovered; and also as to the allegation that persons were on the cotton platform smoking cigars at the time the cars arrived. The defendant’s witnesses testified that the engines were in good order and supplied with the most improved spark-arresters; and that the employes were careful and competent men, and acted with care and prudence that day.
After a full charge by the presiding judge, in which he carefully considered requests to charge by both parties, the jury found for the defendant, and the plaintiff appeals to this court, alleging that there was error in charging:
1. “That the fact that the fire occurred from a spark from the engine is not proof of negligence if the engines were well constructed — having improved safeguards, and were prudently managed.
2. “ That the measure of defendant’s duty is the ordinary care of a prudent man in the management of his own property.
3. “That if it is equally probable that the fire originated from any cause other than defendant’s engine, the defendant is not liable.
4. “ That defendant cannot be made liable on a mere probability that the fire was caused by its engines, but only on the preponderance of the proof that it was so caused, and then only upon proof of negligence on the part of defendant or its servants; and that the probability must amount to proof.
5. “ That if the jury believe, from the evidence, that the defendant corporation was provided with the most approved machinery for protection against fire, and that said machinery was worked by careful and competent employes, they must find for the defendant.
6. “ That the owner of cotton on the platform took the risk arising from usual and prudent running of the trains: Sparks are liable to be emitted from engines, and the risk of this liability, from well-constructed and well-managed engines, the plaintiff took.
7. “That if the jury believe, from the evidence, that the town council of Gaffney City erected and controlled the platform, and allowed persons to place cotton thereon, knowing the lia*55bility to destruction by fire, and did not take the necessary precaution to prevent it, this constitutes the intervention of an independent responsible agent, and the defendant is not liable, except for negligent destruction of the cotton.
8. “ That the liability of defendants, as common carriers, did not arise in this case.
9. “That prudence would dictate that the town council of Gaffney should have a watchman in charge of the cotton placed at or near platform.
10. “ In charging that the defendant had the right to run its engines along the side track as well as along the main track; that both tracks belonged to the company, and were built 'for its use; and the right to control these tracks could not be affected by putting that platform there.
11. “In charging that if there was nothing against it in the contract of the parties which inhibited it, the defendant had the right to run the passenger train through the side track close by the cotton, and come out on the main track at the other end of the siding.
12. “In charging that it required a great preponderance of testimony to establish the fact of burning the cotton by sparks from the engines.”
There were, really, only two questions in this case: First. Whether the fire which consumed the cotton was caused by a spark from an engine of the company; and, if so, second, Whether that was an act of negligence for which the company should be held liable. The former was a pure question of fact for the jury; and the latter also, except in so far as it involved the necessity of defining what constitutes negligence. This was for the judge, and if he defined it correctly, as applying to the circumstances, then the whole case was for the jury. They found for the defendants, which must have been upon the ground, either that the fire did not proceed from the engine, or that there was no negligence; and in either case the verdict is conclusive upon us, unless there was some error of law in submitting the case to the jury.
We will consider together exceptions 1, 2, 5, 6, 8, 10 and 11, as to the rights, duties and habilites of the railroad company in *56relation to the cotton of the plaintiff. We cannot say that it was error in the judge to charge that the company was not liable for the cotton as a common carrier, and, therefore, bound to account for its value, if it was set on fire by a spark from one of the engines, whether that was done negligently or not. The plaintiff himself placed the cotton in proximity to the track without any agency of the company, and on a platform which did not belong to it. The company may not have known of the existence of this particular lot of cotton. They certainly had not, directly or indirectly, received it or come under any obligation to exercise special police care over it, or even to transport it. They stood to this cotton as to any other property placed by the owner near the track, and which did not belong to them. That is to say, they could not injure it willfully, wantonly or negligently ; but, having the right, by charter of the State, to run upon their track locomotives propelled by steam, they were not responsible for the consequences which might result as an incident from such use of locomotives as would be inevitable accident, provided it appeared that such consequences’ had resulted notwithstanding the exercise of proper care and diligence ; and the fact of the injury being proved, the onus was upon the company to disprove negligence, which they might do by showing that they had the most approved mechanical contrivances to prevent the escape of fire, and that on that day such engines were managed with due care and skill.
We think the charge of the judge was in accordance with the principles laid down by Mr. Pierce: “A railroad company, being authorized by law to work its engines in the usual and proper way, and, when necessary in the exercise of this right, to send forth particles of fire from them, is not liable for injuries caused thereby to private property, provided it exercises its rights in a lawful manner, and with reasonable care and skill. * * * The plaintiff must show that the fire originated from the company’s engines. It is not sufficient to show a possibility tliát the injury was caused by the company. The proof that the company caused the fire may be circumstantial as well as direct. As negligence is the gist of the action against the company for injuries received from it while exercising its lawful right to con*57duct its trains, the burden of proof is on the plaintiff to prove the negligence. The fact of injury suffered by the plaintiff in consequence of the exercise of a right by the defendant, does not raise the presumption of negligence, except in some particular cases, as in actions against innkeepers and common carriers, which are made exceptions to the general rule on grounds of' public policy. Hence, the setting on fire of grass, fences or buildings, on the railroad, by particles of fire, which are proved to have issued from the company’s engines, does not, of itself, justify the inference of negligence. There are, however, authorities which hold that the fact that the company caused the injury by fire, raises the presumption of its negligence, and that, upon this fact appearing, the burden of proof is on the company to disprove negligence by showing that it used the best mechanical contrivances in known practical use to prevent the escape of fire from its engines, and that it managed such engines with due care and skill.” Pierce Railr. L. 431, 437 and 438, and many authorities there cited; McCready v. S. C. R. R. Co., 2 Strobh. 356.
We can see no difference in this respect between the use of the side track and that of the main road, subject, of course, to the same rule of proof as to negligence. Both belonged to the company, and both, built in the same right, had their proper uses connected with the running of the road. The platform, placed near the side track by the town authorities, did ,not impose on the company a measure of responsibility as to the use of that siding, other than that which existed as to the use of the main track. The plaintiff chose to put his cotton on the platform close to the side track, and, as the judge states, “ When he placed it there he took the risk arising from the usual and prudent running of the trains.”
Exceptions 7 and 9 complain that the judge charged: “ That if the jury believe from the evidence that the town council of Gaffney City erected and controlled the cotton plat- ' form, and allowed persons to place cotton thereon, knowing its liability to destruction by fire, and did not take the necessary precautions to prevent it, this constitutes the intervention of an *58independent responsible agent, and the defendant is not liable, except for negligent destruction of the cotton.”
We do not see how this could prejudice the plaintiff. The defendants were liable for the cotton burned which they had receipted for, not on the ground of negligence, but as common ' carriers, and it was a matter for them to decide, with refei’ence only to their own security, whether they would keep a guard there or not. They were not bound to do so, in order that, as an incident, the cotton of the plaintiff might also be protected. In the same connection in which he referred to the want of prudence on the part of others in having this cotton guarded, the judge said: “ But, if this prudence was not exercised by the parties who put the cotton there, if they were negligent, it, nevertheless, did not excuse the railroad company from negligence, because it was by their permission that the platform was erected and the cotton put on it. And, whilst the railroad company was not bound to exercise any care or control over that cotton, except what it had receipted for, yet it was not excused from exercising the proper care and prudence in the management of its road; and if, by any defect in the construction of the company’s engines, or any negligence or imprudence in the management of their engines on that day, the cotton was burned, the company would be responsible, notwithstanding the absence of a watchman,” &c.
Exceptions 3, 4 and 12, in different form, make the point that the judge erred in charging “that defendant cannot be made liable on a mere probability that the fire was caused by its engines, but only on the preponderance of proof that it was so caused, and then only upon proof of negligence on the part of the defendant or its servants, and that the probability must amount to proof.” We.have already disposed of the question of proof as to negligence. This part of the charge, in terms, had reference to the primary issue, whether the fire was caused by the engine of the company. That was purely a question of fact, as to which the onus was on the plaintiff. Was it error for the judge to say to the jury, in submitting that issue, that the allegation should be made out by “ the preponderance of proof— that it was not sufficient if there was an equal probability that *59the fire originated from some other cause; that the probability-must amount to proof? ”
It is contended that, in reference to the findings of facts by a jury, there is really no distinction between probability and proof, and that the charge led the jury to infer that positive, as distinguished from circumstantial, evidence was necessary. The whole charge shows, unmistakably, that such was not the meaning of the judge. He says: “ The evidence must not be merely enough to raise a suspicion, but it must produce satisfaction in your minds, and, if you can, under the testimony, account for the burning upon any other hypothesis, as well as the spark from the engine, then you cannot find for the plaintiff, because you must be satisfied that the allegation of the plaintiff is true.” And at another place he says: “ Does the great preponderance of testimony satisfy your mind that sparks from the engine fired that cotton, or that it was fired by a spark, or coal, or a bit of burning tobacco from a pipe? Now, to which, as twelve men in honest search of truth, from the testimony in this case — not from conjecture, not from probability — to which cause will you refer it? That is for you.”
It seems to us that there is a difference between probability . and proof. The object of both words is to express a particular effect of evidence, but “proof” is the stronger expression. All the dictionaries give different definitions of “ probability.” One of Worcester is, “ Likelihood of the occurrence of an event in the doctrine of chances, or the quotient obtained by dividing the number of favorable chances by the whole number of chances ■” and one of Webster is, “ Likelihood; appearance of truth; that state of a case or question of fact which results from superior evidence or preponderation of argument on one side, inclining the mind to receive it as the truth, but leaving some room to doubt. It therefore falls short of moral certainty, but produces what is called opinion. Demonstration produces certain knowledge, proof produces belief, and probability opinion.” We think the case was fully, fairly and clearly submitted to the jury.
The judgment of this court is that the judgment of the Circuit Court be affirmed.