On rehearing.
Lord, J.— There is no positive testimony as to the fact of ignition. The testimony for the plaintiff did not show directly that the fire which burned his mill was caused by the engine which hauled the train on the night alleged, but it did tend to show a state of facts from which the inference might be drawn that the fire which destroyed his property was communicated from that engine and caused his loss. It *23was shown about the time alleged on the night of the fire that a passenger train passed the mill, and it was observed by some persons in the vicinity that large quantities of sparks were emitted from the engine and flew over in the direction of the mill, which, taken in connection with other evidence tending to show the improbability of the fire having originated in any other way, raised a strong inference that the firing of the mill was caused by sparks from the engine that hauled that train. What particular engine this was, the evidence does not disclose, nor was the plaintiff able to ascertain, to make proof of its identification from other engines of the company. But to strengthen the inference that the burning of his mill originated in sparks from this engine, and to show habitual negligence of the officers and agents of the railroad company, he introduced evidence to show that other engines of like appearance and construction frequently scattered fire in large quantities and set other fires along the track, prior and subsequent to the burning complained of. Was this error?
The case shows that when the fire started no one was present, and the object of his evidence was to account for its origin. He could show that sparks escaped from a passing engine of the company on that night under circumstances which raised an inference that it caused the destruction of his property. What particular engine this was, he could not identify so as to distinguish it from any other engine of like appearance and construction used by the company, and consequently he could not make any direct proof of defects in the construction or negligence in its management. On account of this difficulty of identifying a passing engine, especially at night-time, so as to make direct proof of such negligence, and also for the reason, as stated by Mr. Thompson, that the business of running railroad trains supposes a unity of management and a general similarity in the construction of the engines, the admission of evidence as to other and distinct fires from the one alleged to have caused the injury, is permitted. Nor is it requisite *24that the testimony must also show that the engine which it is claimed caused the fire was one of those which had previously or subsequently scattered fire along its track; but it is enough, as was shown, that it was similar in appearance and construction, and under the same general management. Hence it is quite generally held that evidence that sparks were frequently ejected from passing engines, causing fires along its track on other occasions, is relevant and competent to show habitual negligence, and to strengthen and sustain the inference that the fire originated from the cause alleged. As the plaintiff must proceed with his evidence in the first instance» the fact that the defendant may be able to prove the identity of the engine cannot have the effect to make the admission of such evidence error. It may be granted that the admissibility of such evidence trenches somewhat on the general doctrine regarding relevancy in actions of this character, but the authorities indicate that its allowance is justified by the necessities of the case. As the testimony for the plaintiff failed to identify the engine which caused the destruction of his property, did the evidence for the defendant, supplementing the evidence for the plaintiff, show conclusively that the engine which hauled the train on that night was identified as No. 59? No question is raised but what the defendant sought to show that it was engine No. 59; but was the evidence in this regard of such undisputed and conclusive character as would authorize a court to withdraw its consideration from the jury, as to whether it was identified or not, or what is the equivalent, to assume by its instruction that the engine was identified as number 59? The argument for the motion assumes that it was, and we must briefly consider the evidence to test its soundness.
After the evidence for the plaintiff, it devolved upon the defendant to identify the engine, and to show that it was properly constructed, furnished with safe appliances, and carefully managed on that occasion, to overcome the prima facie case made. Without more ado, it may be admitted» for present purposes, that if the engine in question was iden*25tified by the evidence as number 59, that it further showed that it was properly constructed and furnished with the best appliances for safety, and that it was in charge of an engineer recognized by his class as competent and skillful, but it omits to show that he carefully operated and managed it on that occasion. Was the identity of the engine so completely established as number 59 as would be error to submit that question to a jury? Mr. Warlick, who was a witness for the defendant, testified that on the night in question he “ was firing” the engine; that “ 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 is no reason why I should notice it more than any other. My impression is that it was engine 59 we ran on that night. I am only conscious of it by circumstantial evidence, seeing the register in the call-book 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; 63 was an engine that had never stopped up on us. Everybody had been buzzing me about that engine I was running on that night. The conductor was speaking to me about it the other night,” etc.
It seems to me that the fair inference from the testimony of this witness is, that the impression which he had that the engine run on that night was number 59 was derived solely from the register; that in his own mind there was some conflict as to whether it was 63 or 59, with the stronger and prevailing recollection in favor of 63 — “ kinder thinking it was 63 ” — which is corroborated by his conversation that he had so talked to others that it was 63. To say the least, the legitimate effect of his evidence is to create a ground of doubt as to the identity of the engine, and when such is the case, nothing is more elementary than the question is for the decision of the jury and not for the court. There is no other evidence of the identification of the engine as number 59, except from the entry in the register, and Mr. Robbins and Mr. Stevens base their testimony *26of its identity upon its record. Nor is there any claim outside this book, that they can testify to the identity pf the engine which hauled the train on that night. The train-book in which the original entries were made by the conductors was not produced, but the conductor testified that the record in the registry was made from it. There seems to have been some alteration or change in some figure in the registry; but as no explanation is vouchsafed, its purport we are unable to determine. On one side it is claimed that the change is immaterial and in no way affects the question involved; while on the other, it is as strenuously insisted that it is of such a nature as to cast suspicion on the register and to destroy its value as record evidence. Whatever the change was, Mr. Robbins testified that he did not know how it “ came to be changed.”
Between these conflicting claims as to the value of this record evidence, we have no means of determining, or if we had, no authority to determine which is correct, and cannot, therefore, express any opinion which shall reflect on any one; but the jury, the tribunal constituted to try such facts, under the guidance of the court, enjoyed full opportunities to see and inspect the register, to see and hear the testimony of the witnesses, and to observe and note all the surrounding facts and circumstances, which specially fitted them, as the law intends, to determine the right of the matter.
Upon such a state of facts the court has no right to intervene. When a court is asked to declare a fact established as a matter of law, the evidence ought to so completely and irrefutably establish the fact as to free the mind from all doubt and hesitation. A party on whom rests the burden of proof is bound to prove each circumstance which is essential to the conclusion, and in such case proof means anything which serves to convince the mind of the truth or falsehood of the fact or proposition. The identity of the' engine is foremost among the facts essential to be proven by the defendant to satisfy the minds of the jurors it was No. *2759 in order to follow it with the necessary evidence of its proper construction and careful management.
Looking to the evidence of the fireman, aided by the proof of the record and the testimony of the witnesses in respect to it, it may be, despite all criticism, that it ought to have convinced the jury of the identity of the engine, and yet that is no reason that the court should invade their province and withdraw the question from their consideration. To do that the evidence must not only be undisputed, but it must be free from all doubt and uncertainty.
Now, if we turn to the evidence of the fireman, his predominant impression was that the engine was number 63, or, to say the least, his mind was involved in doubt and vibrating between 63 and 59; or, if we turn to the register, its credibility is attacked as a record and depends for its weight and value upon the credibility of the witnesses who testified in respect to it; and in such case, when the fact is involved in doubt, and depends upon the credibility of witnesses, it is plain law that the question is for the decision of the jury and not for the court.
To conclude, the witnesses on this question were the agents and employes of the company, and the jury were the exclusive judges of the weight and credibility of their testimony under the circumstances. It was for the jury to say, and not the court, that the engine was number 59, as well as whether it was properly constructed, furnished with safe appliances and carefully managed on that occasion. As the amendment to the instruction asked indicates, the trial court regarded the evidence of the identity of the engine as number 59 not wholly free from doubt, and more properly to be submitted to the jury to resolve such doubts than to dispose of it on his own responsibility; and in so doing, upon the facts as disclosed by this record, we are not prepared to say there was error.