— This is an action to recover damages for the destruction of the plaintiff’s mill by fire, emitted from a locomotive operated by the agents of the defendant. It is enough to say that after issue was joined and a trial had, the verdict and judgment was for the plaintiff. The appeal presents several assignments of error, but we shall only notice those which were chiefly relied upon at the argument 4o work a reversal. It is insisted that the plaintiff, by the form of his pleading, has specified a particular engine which caused the mischief or loss, and by reason thereof has precluded himself from introducing evidence in relation to any other. The fifth paragraph of the complaint is as follows: *8“That on the morning of the 30th day of April, 1888, about the hour of one o’clock A. M., the said defendant was, by its agents, servants and employes, running an engine and train of cars over its road where the same passes along the said mill, warehouse and granary of plaintiff, as aforesaid; and plaintiff avers that said engine of defendant was unskillfully and imperfectly constructed, and unskillfully, carelessly and negligently run and managed by the said defendant and by its said servants and employes, and that by reason of its said defective and improper construction and the said unskillful, careless and negligent operating and running of said engine by defendant and its said agents, servants and employes, there were emitted and ejected from said engine of defendant, opposite to and close to said mill, warehouse and granary of plaintiff, a large quantity of sparks and burning cinders and coals, and the same were then and there by said engine, by reason of its defects and careless and negligent running and operation, thrown and scattered upon and over said mill, warehouse and granary of plaintiff, and about the same, and did ignite and set fire to the same, and caused the same, with the said contents thereof, to be burned, consumed and utterly destroyed, to the great damage of the plaintiff in the sum of $39,361.72.”
In its answer the defendant admits that at or about the date mentioned in said paragraph, it was, by its agents, servants and employes, running an engine and train of cars upon and over its road where the same passes plaintiff’s said mill, warehouse and granary, but denies that said engine was unskillfully or improperly constructed, or unskillfully, carelessly or negligently run or managed by the defendant, and denies all other allegations of the paragraph quoted.
It will be observed that the language of the allegation is, that “ an engine,” at or about the time and place specified, by reason of the negligence stated, caused the destruction of the plaintiff’s property, but such allegation does not undertake to identify any particular engine which occasioned that *9loss of property as averred. It was “an engine,” but what particular engine of the many operated by the defendant is not indicated. By what name or number it was known, whether “Annapolis” or “Alexandria,” or No. 59 or 69, the allegation does not purport to specify.
The evidence of the plaintiff indicates and tends to show that he endeavored to ascertain the particular engine it was that passed at the time and place alleged, and that he was unable to find out the particular engine it was. He knew that his mill property had been destroyed, and that the company, according to his verified complaint, had negligently caused the loss; but he was unable to say, and does not undertake to say, that he can identify the particular engine complained of. The form of expression is not definite, but indefinite as to the engine, but sufficiently specific in connection with the other facts alleged as to time and place when the accident occurred to enable the defendant to ascertain with a reasonable degree of certainty what engine passed at the time alleged. A failure in this regard would have rendered the complaint liable to a motion to be made more definite. It is the duty of a plaintiff in such an action to state in his complaint as definitely as possible what train caused the injury, so that the company may be able to identify the engine and investigate what its condition was and the conduct of its agents and servants at such time. But the complaint is not objected to in this particular; but on the contrary, the contention is, that the allegation is so specific as to identify the particular engine, and limit the plaintiff in this proof to that engine. On its own contention, then, it may be taken for granted that the allegation is sufficiently definite to enable the defendant to ascertain the engine which caused the loss, and to prepare itself to meet the charge of negligence, but the allegation does not purport to identify the particular engine, or that the plaintiff knew what engine of the company it was, so that he could distinguish it from any other owned and operated by the defendant. The cases disclose, and the fact is, that it is not *10possible often for the plaintiff to know, so that he can identify, what particular engine occasioned the destruction of his property, but he may be able so to state other facts, as to time and place and kind of train, etc., as to enable the defendant to identify it with its means of knowledge, and which the company is assumed to possess for the proper management of its trains and the general conduct of its business. It will be noted that thus far the contention has been that the plaintiff by the form of his allegation had identified a particular engine as causing the alleged destruction of his property, and as a consequence, if this .view was correct, that his proof must be limited to that engine, and could not legally include evidence relating to any other.
It will be seen, then, that the conclusion deduced rests on the assumption that the allegation specified a particular engine to which the evidence for the plaintiff must be confined, but we have found as a result of our interpretation that such is not- the true purport or effect of that allegation, and the premise failing, it results that the conclusion must go with it. To exclude, therefore, the evidence objected to, it must rest on some other basis than the argument suggested.
This brings us to the consideration of several propositions involved in the contention of the defendant which, for convenience, may be thus summarized: (1) That in actions of this character, the burden of proof is on the plaintiff to show negligence, and (2) that the allegation and testimony for the plaintiff taken together so definitely, point out the particular 'engine which caused the mischief, that it was error to admit evidence relating to other engines, and (3) that the evidence for the defendant showed that the engine which passed the property at the time alleged was number 59 and entitled the defendant to its instruction as asked.
Upon the first proposition, the contention of counsel for the appellant is, that the negligence of the defendant will not be presumed from the mere fact that the fire was caused by fire escaping from the defendant’s engine. Upon this *11subject the authorities are in open and irreconcilable conflict, and we must choose with which we shall side for what seem to us the better and more cogent reason. In many of the states, the escape of fire from a passing engine whereby property is destroyed, raises a presumption of negligence, which shifts the burden of proof and imposes on the defendant the duty to rebut such presumption by showing that it used safe appliances and competent servants. In other states, the mere fact that fire escaped from a passing engine and property was destroyed, does not of itself raise a presumption of negligence without some additional evidence to prove negligence. (See Am. & Eng. Eney. of Law, Vol. 8, pp, 9,10 and 11, where all the cases by states are carefully collated pro and con upon this subject; also Lawson’s Rights, Rem. & Pr., Yol. 3, § 1361, and notes 1 and 2.) The reason suggested for the support of the contention for the defendant is founded upon the principle that no liability can result to another from the proper and lawful use by any person of his property; that a railroad company has the right to use fuel for fire to generate steam to propel its trains, and that if it exercises such right in a lawful manner and with care and circumspection, using the most approved appliances to prevent escape of fire, and exercising due care and skill in the management of its locomotives, and damages occur by the emission of sparks, it is damnum absque injuria, and no right of action arises; that negligence is the gist of the action, and that the burden of proof is upon the plaintiff to establish such negligence by satisfactory evidence, and that it cannot be inferred from the simple fact of an injury or loss of property. “Where there is neither negligence nor folly,55 said Williams, C, J., “ in doing a lawful act, the party cannot be chargeable with the consequences.55 (Burroughs v. H. R. R. Co. 15 Conn. 124, 38 Am. Dec. 64.) “Negligence,’5 said Hubbard, J., “cannot be inferred from the simple fact of causing fire, for the reason that the use of fire to propel an engine is lawful, and sparks and coals may escape, notwithstanding all the safeguards which modern improvement has sug*12gested. (Sheldon v. H. R. R. Co. 14 N. Y. 224, 67 Am. Dec. 155.)
For the most cogent reasons in support-of this rule, we are referred to P., etc., R. R. Co. v. Yeiser, 8 Penn. St. 374, which is perhaps recognized as the leading American case on this subject. It was an action to recover damages caused by a lire set by sparks emitted from the defendant’s engines while in use upon its road. The trial court instructed the jury that if they believed the fire was caused by sparks from the defendant’s engines, that such fact of itself was evidence of negligence. Upon appeal to the supreme court, the instruction was held erroneous, and Rogers, J., in delivering the opinion of the court, among other things, said: “ It is well settled by many adjudicated cases, that an action does not lie for a reasonable use of one’s right though it be to. the injury of another. For the lawful use of his own property, a party is not answerable in damages, unless on proof of negligence.” Turning, then, to the position assumed by the trial court that it “ would be a matter of extreme difficulty ” for the plaintiff to prove negligence, where numerous trains were passing in rapid succession, and that “it would be absolutely beyond all proof to distinguish the one which caused the injury,” the learned judge proceeds: “It is said that the proof of negligence in managing the fires of any particular engine, running as the engines of this company do, at all hours of the day and night, very many trains passing both ways, and with a speed that would defy or baffle observation, would always be a matter of extreme difficulty-. The fire lodged in a wood or a house might break out into a conflagration for hours after and twenty engines may have passed shortly before or after the fire was communicated, among which it would be absolutely beyond all proof to distinguish the one which caused the injury. From all this the learned judge draws the conclusion that it would be unreasonable to require proof of negligence. It may be very true that there may be some difficulty in the proof arising from the circumstances stated, and if so, they ought to be taken into consideration by the jury. But be*13cause there is some perplexity in it, arising from the manner in which the business of the road is done, that is no reason that every principle of law should be uprooted by requiring no proof of negligence whatever. We see neither reason nor justice in the position. The plaintiff in this suit declares for negligence — negligence, according to his own showing, is the gist of the action, and yet he has been allowed to recover damages without any proof of negligence, or any attempt even to prove it.”
On the other hand, the opposite rule that proof of the escape of fire from a passing engine establishes a prima facie case of negligence in the construction and management of such engine and casts on the defendant the burden to sIioav proper care and to rebut the presumption, is sustained by a cogency of reasoning and a sense of justice and fair dealing difficult to ansAArer and overcome. It is based on the idea that the means of rebutting the presumption is entirely in tíie poAArer of the defendant, that the plaintiff cannot be expected to know, much less to prove, that the engine was defective in its appliances or construction, or that it was negligently managed on the occasion of the destruction of his property, and that in such case, to impose the onus on the plaintiff to prove some positive act of negligence or circumstances tending to sIioav a want of due care or skill, Avould, in many instances, be equivalent to a practical denial of justice. It is not claimed that the presumption is not very satisfactory or strong, but it is indulged merely to compel the company to sIioav that it had performed its duty in tins particular. (Spaulding v. Railroad Company, 30 Wis. 110, 11 Am. Rep. 550.) But its effect is to shift the burden of proof upon the defendant Avhere it properly belongs. Such proof cannot be expected from a stranger. “The engines are all alike to him. He does not knoAV them apart, nor does he knoAv Avheu any particular engine is used, or who manages it. And Avhen it passes at the rate of fifteen or twenty miles an hour, he could not see enough of it to afteiwards identify it„ What the engine is, and how it is managed, is peculiarly *14within the knowledge of the company.” (Atch. R. R. Co. v. Stanford, 12 Kan. 354, 15 Am. Rep. 362.) The reason of the rule is founded in the necessity of the case.
It has been thus forcibly stated by Judge Thompson : “All information as to the construction and working of its engines, and of the particular one in fault, is in possession of the company, as are also the means of rebutting the charge of negligence entirely in its power. An outsider can hardly be expected to prove that in the construction of the engine, or in the use of it at the time the injury occurred, the company was guilty of negligence. He can only prove that his, property was destroyed by one of the company’s locomotives, and having done this, it is but proper to call on the defendant to show that he was not negligent, that he employed careful and competent servants, and that he had used the most improved appliances to prevent the escape of fire from his engine.” (1 Thompson on Negligence, 153, sub. 3.) “The reason given,” said Mr. Chief Justice Dixon, “for requiring the companies to show that this duty has been performed on their part, are, that agents and employes of the road know, or are at least bound to know, that the engine is properly equipped to prevent fire from escaping, and that they know whether any mechanical contrivances were employed for that purpose, and if so, what was their character; whilst on the other hand, persons not connected with the road, and who only see trains passing at a high rate of speed, have no such means of information, and the same is inaccessible to and cannot be obtained by them without great trouble and expense.” (Spaulding v. Railroad Co. 30 Wis. 110, 11 Am. Rep. 550.) In the nature of things the plaintiff cannot have access to the engine for the purpose of ascertaining if it is properly constructed, and it is wholly impossible for him to prove how the agents and employes of the company were operating the engine when the property was destroyed. The difficulty is inherent, and to hold otherwise would operate often as a denial of justice. As the facts are peculiarly within the knowledge of the company, it is no hardship to *15devolve upon it the onus of proving the proper construction of the engine and its careful management. The case in hand illustrates the justice of such a rule. The plaintiff was not able even to ascertain the particular engine which passed at the time alleged and caused the destruction of his property. He wrote to the agent of the company defendant, but failed to elicit an answer; and when he sought personally to ascertain the fact, he was treated as an intruder, and utterly failed to obtain the information desired. How then could it be expected that he should be able to tell, still less'to prove, that the engine was not properly constructed, or used improper appliances, or that it was not operated with skill and care by the agents of the defendant. He knew his property had been destroyed, and that it had been caused by sparks emitted from the engine of the defendant company, and when he had proven this much it was no hardship to require the defendant to show that its engine was not the cause.
It is not disputed that railroad companies have not the legal right to use fire to generate steam to propel their locomotives, but they have no right to scatter fire along their track, and if they do so, and the property of others contiguous thereto is destroyed, in the absence of explanation, they cannot avoid the imputation of negligence. In this view it results that we regard the rule — exception, it may be, to the general rule — holding that property destroyed by fire caused from a passing engine raises a presumption of negligence which shifts the burden of proof as founded in the sounder reason and better adapted to attain the ends of justice.
It is next insisted that under the pleading and proof in the case, that the particular engine that hau1"'1 the time alleged the property was destroyed not identified as to its number, was so definit as, in fact, to make its identification com; evidence in relation to fires caused by othe and subsequent thereto was inadmissible a *16case must be considered from the standpoint of tbe plaintiff and the proof he submitted. The allegation in the pleading does not identify the engine that caused the mischief; and the testimony for the plaintiff tending to show that the fire was caused by an engine of the defendant on the night alleged does not indicate what engine it was, or from which it would be possible to identify or distinguish it from other engines of the defendant company. No one can read that testimony and say what particular engine from any other owned and operated by the defendant caused the destruction of his property. He had furnished the data by which the defendant might be able to identify it, but what the defendant might be able to prove toward its identification could not help him. He was bound to proceed in the first instance with evidence to establish his allegations, and if he failed to submit enough the defendant would move for a non-suit, before it submitted any evidence in the case, much less to identify the engine which caused the fire.
The plaintiff introduced evidence tending to show that the fire which destroyed his property was caused by sparks emitted from an engine of the defendant company, but what particular engine he did not know, nor does the evidence disclose, for he had been unable to ascertain this fact and could not make proof of its identification. He showed that an engine passed and scattered fire, and then showed that other engines of the same general appearances scattered fire in large quantities and to a great distance and set other fires along the track prior and subsequent thereto. The pleading and testimony for the plaintiff does not identify the engine which caused the mischief, and there was no error in admitting the testimony in relation to other engines. A like argument was urged in Annapolis R. R. Co. v. Gault, 39 Md. Counsel for the appellant contended “that the declara- . specially averred that one of the defendant’s locomotives negligently managed on a particular day •named that ’ks and cinders from said locomotive set fire to the etc. This specific averment was *17explicitly denied, and the plaintiff himself in his testimony expressly proves that if the fire was caused at all by any locomotive of the company, it was caused by the locomotive “ Annapolis,” which was drawing the freight train towards the junction on the day designated. The issue then before the jury was, whether the defendant on that occasion “ so negligently managed ” the locomotive “ Annapolis ” that sparks and cinders from that locomotive set fire to the plaintiff’s premises. There was no proof that the “ Annapolis ” had thrown out such sparks on the occasion referred to, or any other. But that other engines, on other occasions, had set fire to leaves on other people’s property, was surely irrelevant to the issue.
Here the contention was that the allegation and testimony of the plaintiff identified the particular engine and limited the proof to that engine, but the court held otherwise, and decided that the plaintiff might show that within a week before the fire in question the engines of defendant, in passing, had scattered large sparks which were capable of setting fire to combustible materials along the road, and that frequent fires, occasioned by such sparks, had been put out within that time. The argument there was, as here, that according to the allegation and testimony for the plaintiff, if the fire was caused bjr an engine of the defendant, it was caused by number 59, which the defendant sought to show hauled the train on the night designated, but the evidence offered and submitted by the plaintiff does not show it was number 59 which threw out sparks on the occasion alleged, or any other number or name, or what particular engine it was, except that it was an engine of the defendant company. “ The plaintiff is not bound,” says Mr. Lawson, “ to prove which particular locomotive caused the fire.” (3 Lawson’s Rights, Rem. & Pr. § 1361.)
Said Brady, J.: “The further objection that proof of prior and subsequent emission of sparks by the defendant’s engines, or some of them, was improperly permitted, is untenable. Such evidence has been declared to be admis*18sible in actions of this class. (11 Hun, 184, citing Sheldon v. Hudson R. R. Co. 4 Kern. 218, 67 Am. Dec. 155; Field v. N. Y. Cent. R. R. Co. 32 N. Y. 339; Webb v. Railroad Co. 49 N. Y. 420, 10 Am. Rep. 389.)
The supreme court of the United States has ruled in the same way. In Grand Trunk R. R. Co. v. Richardson, 91 U. S. 454, the plaintiff was allowed to prove that at various times during the same summer, before the fire occurred, some of the defendant’s locomotives scattered fire when going past the property destroyed, without showing that either of the locomotives which it was claimed caused the fire was among the number, and without showing that the former locomotives were similar in their make, state of repair or management, to the latter ones. Mr. Justice Strong, in delivering the opinion of the court, said: “ The question, therefore, is whether it tended in any degree to show that the burning of the bridge and consequent destruction of plaintiff’s property was caused by any of defendant’s locomotives. The question has often been considered by the courts in this country and in England, and such evidence has, we think, been generally held admissible, as tending to prove the possibility and a consequent probability that some locomotive caused the fire, and as tending to show a negligent habit of the officers and agents of the railroad company. (Pigott v. R. R. Co. 3 Mg. & S. 229; Sheldon v. R. R. Co. 14 N. Y. 218, 67 Am. Dec. 155; Cleaveland v. R. R. Co. 42 Vt. 449; R. R. Co. v. McClelland, 42 Ill. 358; Smith v. R. R. Co. 10 R. I. 22; Longbaugh v. R. R. Co. 9 Nev. 271.) There are, it is true, some cases that seem to assert the opposite rule. It is, of course, indirect evidence if it be evidence at all. In this case it was proved that engines run by these defendants had crossed the bridge not long before it took fire. The particular engines are not identified, but their crossing raised at least some probability, in the absence of proof of any other known cause, that they caused the fire. And it seems to us that under the circumstances, the probability was strengthened by the fact that some engines of the same defendants at other times during the same season, had scattered fire during their passage.”
*19We are unable, therefore, to sustain this assignment as error. It is next claimed that the evidence for the defendant showed that the engine which passed the property on the night referred to was number 59 and entitled the defendant to the instruction asked without modification and for some other reasons to have the verdict set aside. To support the proposition involved, the argument assumes (1) that the evidence for the defendant indisputably identifies the engine that did the mischief as number 59, and (2) that it was properly constructed and carefully managed on that occasion; and (3) if this is so, that the presumption of negligence raised by the simple fact of injury from the escape of fire from a passing engine is rebutted and overcome, and the plaintiff cannot recover, and the court must so declare as a matter of law. The consideration of the points involved will be aided by understanding the attitude of the case. In addition to the presumption raised by the mere fact of an injury by fire from a passing engine, there was evidence introduced by the plaintiff tending to show whatever engine it was that run by the mill on the night alleged, that it was running at a high rate of speed, and was emitting an unusually large quantity of sparks, and that in view of the proximity of the mill and granary to the railroad track, there was a want of ordinary care .in not observing proper precautions to prevent fires to property so exposed along its track. The case made by the plaintiff did not stand simply on a presumption of negligence, raised by the mere fact of injury from the ¿scape of fire, but was strengthened by these independent facts and circumstances which of themselves afforded a legitimate inference that the agents or employes in charge of the engine were not exercising proper care and caution in operating it, considering the danger to the mill property situated near the track. Assuming then, for the purposes of the case, that the defendant did introduce evidence tending to show that the engine in use that night was number 59, and that it was properly constructed and supplied with the latest modern safeguards, *20and carefully managed, in order to rebut the presumption raised by the mere fact of injury from the escape of fire, yet as there was other evidence for the plaintiff tending to show that the engine was carelessly managed on that occasion, the evidence was in conflict on this point, and when the facts are disputed, the question is for the jury, and not for the court; but there is no evidence to show that the engine-was carefully managed on that night; all that was offered on this point was, that the engineer who operated the engine on that occasion was recognized as a competent and skillful engineer, not that he carefully operated it at the time alleged.
An engineer may have the reputation of being careful and skillful, and still on the particular occasion have managed his engine carelessly and negligently. Besides, the evidence for the defendant indicates that the engineer, though competent and skillful, was inclined to be of a daring and reckless spirit, and, from the expressions used in describing him, that he was not always careful and prudent. So that if it be conceded there was evidence for the defendant (which there was not) that its engine was managed with proper care and caution on that occasion, such evidence is disputed and controverted by the evidence for the plaintiff, and reserves the case for the jury, and their verdict is conclusive upon us and cannot be set aside; but more, as the mere fact of injury from the escape of fire from a passing engine raises a presumption of careless management as well as improper construction and the use of improper appliances, when so alleged and charged, it follows that, unless the evidence for the defendant shows that the engine was carefully managed at the time, as well as properly constructed and the use of proper appliances, such presumption is not rebutted and overcome. It is when the presumption raised is repelled by proof of proper construction, and the use of proper appliances, and careful management, that the plaintiff cannot maintain the action without making proof of other negligence, or want of ordinary care. But what is the proof of the iden*21tity of the engine as number 59? There is the register upon which an entry was made from the train-book not produced. But it seems to have been the subject of some change, which, it is argued, casts suspicion on it, and indicates that it had been tampered with. Referring to it, the witness testifies that “he did not know how the figure came to be changed,” and that he “did not know, outside this book, what train left Umatilla that night.”
The only man on the engine that night who testified was the fireman (the engineer was dead), and he was inclined to think that the engine was number 63 until he was “buzzed” about it. Among other things he testified: “We were running on pretty fast time. Don’t know whether we were on time at Echo or not. I have no recollection of that particular trip. There was no reason I should notice it (engine) more than any other. My impression is that it was engine 59 we ran on that night. I am only sure of it by circumstantial evidence, seeing the register in the call-book at the office at La Grande. It ran in my mind that it was engine 63 or 59. I was kinder thinking it was 63, and might have talked so to others. Everybody was buzzing me about that engine I was running on that night.”
Considering that the register was only a copy from the original entry book not produced in evidence and the condition it was in unexplained, together with the doubt and uncertainty in the mind of the only witness whom so many were buzzing, and it can hardly be said that the identity of the engine was indubitably established. It is quite probable that the proof failed to satisfy the jury of the identity of the engine used on the night the property was destroyed. The credibility of the witnesses and the weight of the evidence is for the jury and the fact is for them to decide. And, unless the evidence was sufficient to satisfy them that the engine in use that night was number 59, the defendant has no evidence of the condition of the engine that caused the fire.
Turning now to the instructions, it is enough to say that *22the one to the effect that the mere fact of injury from the escape of fire from a passing engine does not raise a presumption of negligence without additional evidence of negligence, was error, as already shown, but was not prejudicial error to the deferjdant; nor is any complaint made on this ground; but the contention was that this instruction, taken in connection with another given, to which no exception is taken or objection is made, authorized the court to set aside the verdict, and that it was its duty so to do. Upon the assumption claimed, the criticism seems just and the conclusion logical; but the view already expressed is in conflict with that assumption, and the facts show a case for the decision of a jury. The trouble with the instructions asked and modified is, that it assumes that engine No. 59 was identified, and asserts consequences on that hypothesis. If it was identified, then it was for the jury to consider all the facts and circumstances and decide whether the alleged negligence was made out; but if it was not identified, and some other engine of the company did the mischief, then the defendant had no proof of the particular engine that caused the fire, and the jury upon the facts could not have found for the defendant. Besides, it does not follow, if the jury should believe that the fire was caused otherwise than by engine No. 59, that the verdict should be for the defendant, for they might believe that the particular engine the defendant, introduced evidence tending to show was No. 59 did not cause the fire, but that it was communicated by some other engine of the company.
Upon the whole we think the judgment must be affirmed.