"Very soon after midnight on the morning of April 23, 1887, a house, barns, sheds, etc., of the appellants, situated upon their premises adjoining the railroad of the appellees, were burned, and appellants allege, by fire kindled by the sparks thrown from a locomotive of appellees.
Many trains of the appellees passed the premises of the appellants during the night, but the appellants fix upon locomotive ETo. 554, passing their premises at 12:02, going north, as th e misch ief maker. Whether they are right in that position is a question for a jury. On coal-burning locomotives the case shows there are two kinds of stacks in use. The earlier kind is known by the name of diamond stack. The later, and as it is claimed by appellants, the safer kind for adjacent property, is the straight stack with front extension.
There was evidence in the case from which the appellants were warranted in insisting that Ho. 554, which carried the diamond stack, threw sparks that caused the fire, and that from such stacks more sparks were thrown than from straight stacks. The size of the sparks that may be thrown by either depends upon the size of the mesh of the netting used, but the straight stacks deposit much of the sparks that would escape from the diamond, in a pocket under the stack, from which they áre removed when a large quantity has accumulated. *
The appellees began in 1884 to change the stacks on their locomotives from diamond to straight, and from the evidence the appellants were warranted in insisting that, one of the reasons on the part of appellees for such change was the greater safety of the straight as to throwing sparks. But in 1884 the appellees had more than 500 locomotives; to change the stacks of -all was a work of great labor, requiring a good deal of time; and they had an immense traffic, needing the services of the locomotives, which, without the constant use of nearly all of them, would be seriously interrupted, to the great inconvenience of the public, as well as the appellants. The real question in the case is, whose is the risk as to the difference in the degree of danger between the diamond and the straight, when one of the former class, in good order and properly managed, is used ? Is it run at the risk of the company, or of the adjacent property owner ?
At the instance of the appellees the court gave, among others, the following instructions:
“First. The court instructs the jury that the plaintiff charges in its declaration in this action, that the defendant was operating and using a certain railroad, extending along and adjacent to the property of the plaintiff, and that while a certain locomotive engine of the defendant, and under its control, was passing said property of the plaintiff, divers sparks and brands of fire then and there escaped, and were thrown, by and through the carelessness and negligence of the defendant, upon the property of the plaintiff, and that by reason thereof said property was wholly burned and destroyed. The defendant for answer to said declaration denies that it was guilty of carelessness or negligence, and denies that said property was burned or lost to the plaintiff through the negligence or carelessness of the defendant.
And the court instructs the jury, that under the issues in this case the plaintiff must, sustain its claim that the fire in question was communicated by an engine of defendant, by a preponderance of the evidence. And you must also, under the evidence and instructions of the court, find that the defendant was guilty of carelessness or negligence in the construction or management of said engine, as defined in their instructions, or else you should find the defendant not guilty.
Second. The court further instructs the jury that the law requires of the defendant in the construction of its engines to exercise reasonable care to prevent the escape of sparks and fire, both from the smoke stack and ash pan of the engine, and for that purpose to use good and safe netting or spark arresters, such as are either most in use, or such as have been approved bv experienced railroad operators and mechanics, at and before the time of said fire, and also that such spark arresters must be good and safe, and such as are approved by experience. And if the jury believe from the evidence that at the time of the alleged fire the defendant was using upon its road, passing near the plaintiff’s property, engines equipped with spark arresters that had been adopted and generally used by railroad companies, and such as have been shown by experience to be reasonably safe, for the purpose of preventing injuries by fire to the plaintiff’s property, and at the same time of such burning, or immediately preceding the same, all the engines of the defendant, charged with emitting fire, were properly equipped with proper spark arresters, and in good order, and were handled and operated in a prudent manner, so far as the same could be handled, for the prevention of the escape of fire, then the court charges the jury that the defendant has discharged its duty to the plaintiff, as required by law, and is not liable for the damages sustained by said plaintiff.
Third. The court further instructs the jury, that if you believe from the evidence that the locomotive engines of the defendant, run upon its road along and in close proximity to the plaintiff’s property, were coal-burning engines, and were equipped with proper appliances to prevent the escape of fire, such as suitable and proper netting, cones, ash pans and dampers, and that in the construction of the smoke stacks of the defendant’s locomotives the netting, or spark arresters, and other appliances to prevent the escape of fire, were of the kind or character that had been generally used upon railroads, upon coal-burning locomotives, and"were extensively used at the time of the burning, and that in the construction, use and operation of said locomotives the defendant had exercised reasonable and proper care and diligence, then the court instructs you that the defendant would not be liable for the burning of the plaintiff’s property, but that under the law such burning would be attributable to accident, for which there can be no. recovery.”
To these instructions the appellants excepted.
An instruction must be construed with reference to the facts in evidence before the jury. Chi. W. D. Ry. v. Mills, 105 Ill. 63.
It was proved conclusively by witnesses for both parties, that the construction of the straight stack was such that it caught and retained in the pocket a very large portion of the sparks that would escape or be thrown out from the diamond; indeed, from some of the testimony it might be argued that the difference would be as much as two bushels in every five miles of run.
If the jury had found for the appellees on the question of fact whether the fire was caused by a locomotive of the appellees, their verdict would probably have been conclusive; but although that question is left to the jury by these instructions it is quite probable that their verdict was based -upon their view of the compliance by the appellees with the law as to their duty laid down in the second and third instructions. With the evidence before them as to the superiority of the straight stack, they could not have found that the appellees had discharged their duty “to exercise reasonable care to prevent the escape of sparks and fire,” “and that in the construction, use and operation of said locomotives the defendant had exercised reasonable and proper care and diligence” except upon the theory that the special circumstances affecting the appellees, the great number of their locomotives, the time and expense required to change all stacks, and the inconvenience by the interruption of business while making such change, excused the appellees in not having upon their locomotives the safest stack.
This theory makes the law for one railroad one thing, and for another, another. The law is not so flexible. It has one measure for all litigants. Palm v. O. & M. R. R., 18 Ill. 217.
Whatever the mileage of a road, the number of its locomotives, or the magnitude of its traffic, if it burns up the property of an adjacent proprietor by sparks escaping from the stack of one of those locomotives, the road must show, as part of its justification or excuse, that it did “ use every possible precaution, by the use of all the best and most approved mechanical inventions, to prevent loss from fire along the line of its road.” C. & A. R. R. v. Pennell, 94 Ill. 448; T., W. & W. Ry. v. Corn, 71 Ill. 493, and many earlier cases.
This rule would be, in a case presenting that feature, qualified, no doubt, as stated in C. & A. R. R. v. Hunt, 24 Ill. App. 644. If it were shown that the means adopted in the particular case to prevent the escape of sparks, were used only by one road, but that in fact they were more effectual than those “ most approved,” it would be absurd to say that the road was negligent in using them. But it being shown that neither the best nor most approved were used, the loser of the burned property is not to be turned away by any excuse for the omission. If the road exposes the adjacent proprietor to peril from fire, which it might have avoided, it makes that peril its own. »
It may not, because of the exigencies of its own business, inflict avoidable loss upon the owners of adjacent property. These instructions were erroneous in that they leave to the jury to find that the appellees had performed their duty by using means to prevent the escape of sparks not so good as the “ best and (or) most approved.”
If locomotive Ho. 554 set the fire, the appellees show no excuse.
The judgment is reversed and the cause remanded.
Reversed and remanded.