For reasons satisfactory to himself, no doubt owing to certain stipulations of the bill of lading restrictive of the amount recoverable on any other theory, plaintiff has elected to prosecute his claim on the ground of negligence, and the cause has been heard and determined throughout on that issue. Considering the case then, in that aspect, there is error in the charge appearing in the above exceptions in that they place on the defendant company, under the conditions suggested, the burden of disproving negligence and thereby changing the burden of the issue to defendant’s prejudice. A charge substantially similar was held for reversible error in a ease at the present term of McDowell v. R. R., 186 N. C., 571, in which it was held as follows: “Upon conflicting evidence as to whether defendant railroad company’s train, in passing the plaintiff’s premises adjoining the right of way over which it passed, set afire and destroyed the plaintiff’s dwelling, the finding of the fact by the jury that the fire was caused by sparks from the train is only sufficient evidence upon which the jury *9may find tbe issue of negligence in tbe plaintiff’s favor, and does not relieve bim of tbe burden to establish tbe issue of negligence by a preponderance of tbe evidence.” “Where tbe burden of tbe issue remains upon tbe plaintiff to show negligence of tbe defendant railroad company in causing bim damage by setting fire to bis property by tbe passing of its train, with a defective spark-arrester, it is reversible error for tbe trial judge to charge tbe jury that if they found tbe fire was caused by sparks from tbe defendant’s locomotive, tbe burden of tbe issue would shift to it to disprove its negligence as tbe cause of tbe damage, tbe plaintiff’s evidence being sufficient only to sustain a verdict on tbe issue, if rendered in tbe affirmative.”
And speaking to tbe question in tbe opinion tbe Court said:
“Tbe question presented has been tbe subject of extended discussion in this Court, and there has been some variety of decision concerning it, but it is tbe settled ruling of the later and prevailing cases that where it is shown that tbe property of-a claimant has been destroyed by fire communicated from defendant’s train, that will make a prima facie ease carrying tbe issue of liability to tbe jury, and of itself and without more is sufficient to justify a verdict as for a negligent wrong.”
“In numbers of cases, particularly of tbe former time, it is said that the facts suggested raise a presumption of negligence, but, as shown in Overcash v. Electric Co., 144 N. C., 572-582, and other cases, it is but evidence and termed presumptive only in tbe sense as stated, that it permits and justifies an inference of liability if tbe jury are thereby satisfied that a negligent wrong is established, and it should never have tbe effect of changing the burden of the issue by putting on tbe defendant, as was done in tbe present instance, tbe burden of disproving tbe negligence charged by tbe greater weight of tbe evidence.”
“Again, it is said in other decisions that when tbe facts suggested have been made to appear, it is tbe duty of tbe defendant to go forward with bis proof; but this does not at all mean that, as a matter of law, defendant is required to offer proof in rebuttal, but only that if be fails to offer evidence in explanation of tbe conditions presented, be takes tbe risk of having a valid verdict rendered fixing bim with liability.”
And White v. Hines, 182 N. C., 276; Page v. Mfg. Co., 180 N. C., 330-334; State v. Wilkerson, 164 N. C., 432; Brock v. Ins. Co., 156 N. C., 112; Cox v. R. R., 149 N. C., 117; Winslow v. Hardwood Co., 147 N. C., 275; Overcash v. Electric Co., 144 N. C., 572; Stewart v. Carpet Co., 138 N. C., 60; Womble v. Grocery Co., 135 N. C., 474; Sweeney v. Erving, 228 U. S., 233, are in full approval of tbe position. As stated in tbe McDowell case, supra, there has been some confusion in 'the application of tbe true principle, under tbe conditions suggested, growing chiefly out of tbe unfortunate use of tbe terms “presumption of *10fact,” “burden of proof,” “changing,” “duty of defendant to go forward,” etc. A very intelligent and helpful comment on these and other like expressions appears in the valuable “Handbook on the Law of Evidence,” by Prof. Lockhart, at sec. 228, and showing, among other things, as applicable to the question as usually presented in these cases, that there is not presumption of fact in any proper sense of the term, but only permissible inferences of fact if the jury see proper to adopt them. And in cases of the kind suggested on an issue of negligence of defendant, the burden of the issue is upon the plaintiff, but where it appears that goods have been shipped with a common carrier in good condition and have been lost or ■ delivered in an injured condition, or where claimant’s property has been destroyed or injured by fire communicated from defendant’s engine or train, or where one, a passenger or employee, has been killed or injured by a collision or derailment of trains, and these basic facts are established by the greater weight of the evidence, a proper charge would be that they constitute or present a prima facie case, carrying the question of liability to the jury on the issue and without more justifying the inference of negligence if the jury so find.
For the error indicated defendant is entitled to-a new trial and it is so ordered.
Error.