Dissenting Opinion.
Ross, J.I can not concur in the view of the majority of the court in holding that the first paragraph of the complaint "proceeds upon the theory that the appellant is liable as a common carrier for the loss of the hay by fire,” and that it is good upon that theory. That part of this paragraph relative to. a delivery to and acceptance by the defendant, is as follows: That the "plaintiffs purchased the said eighty tons of baled hay, and thereafter purchased one hundred and fifty tons of hay, and placed the hay so purchased, as well as the seventy tons, at a point adjacent and contiguous to the defendant’s said side-track at the town of Pimento, and at the usual and customary place of loading hay into defendant’s freight cars at the said town and station.” Is the allegation that the plaintiffs "placed” their hay at a point adjacent and contiguous to a side-track, which was the usual and customary place for loading hay into the defendant’s cars, equivalent to an allegation that the plaintiffs delivered the hay to, and it was accepted by, the defendant?
To support the reasoning of the majority in holding the complaint good upon the theory that the defendant is liable as a common carrier, it is said: "When goods are designated for immediate transportation, the placing of the goods in a condition to be carried, at the usual place *68of loading, and in pursuance of the usage of the parties, constitutes a delivery.” To hold that the mere placing of goods, in a condition to be carried, at the usual loading place, is a delivery to the carrier, is much broader than I ever knew the law to be. In fact, I believe the law grants to the carrier the right to choose the kind of goods which it will undertake to carry; the kind of conveyance it will use in such transportation; the time for transit, and to require the prepayment of its charges. The carrier may refuse to receive the goods offered because they are dangerous, or because they are improperly or defectively packed; because they are consigned to a point to which he does not carry; because of a blockade, a mob or an accident which prevents their being transported within a reasonable time, as well as for a want of facilities with which to transport, or a refusal on the part of the consignor to prepay the charges. To constitute a delivery to the carrier, there must be not only a tender of the thing for which transportation is asked, but an acceptance thereof by the carrier. It is the offer on the part of the one and the acceptance on the part of the other that constitutes the contract for a violation of which liability attaches. To constitute a delivery to the carrier, he must be given exclusive possession, for so long as the consignor retains possession there is no delivery. That class of goods which the consignor is to load, the carrier simply furnishing the cars in which to load them and then to transport them, are not delivered to the carrier, so as to create a liability as a common carrier for their safety and preservation, until actually put aboard the cars.
The case of Louisville, etc., R. W. Co. v. Flanagan, 113 Ind. 488, is not in conflict with the views above expressed. That case was not to recover damages for injury to goods received for transportation, but for damages *69sustained by reason of the carrier’s failure to receive and transport.
If, as this court says in the original opinion, that "Such deposits made under such circumstances constitutes a delivery, although made without notice,” is a correct statement of the law, it would not require an acceptance by the carrier to make the delivery complete. In other words, it puts it in the power of one desiring to ship goods to make a forced delivery to a carrier without his knowledge or consent, without giving him a right to refuse to accept for any reason, thereby creating against him the liability of a common carrier.
I think the first paragraph of the complaint is insufficient upon that theory, and the demurrer thereto should have been sustained.
Again, the majority of the court hold that evidence of the condition of other engines than the one that set the fire is admissible for the purpose of showing the condition of the engine which did set the fire. I can not agree with the majority on this question. It may be conceded, for the purposes of this case, that when the origin of the fire has not been established, proof may be made of the condition of all the engines which passed the place where the fire originated, immediately preceding or about the time the fire started, and that they emitted sparks. Such evidence is admissible for the purpose of establishing the origin of the fire. But when it has been established what particular engine set the fire, it is not proper to prove that other engines set fires. The identity of the engine which set the fire, if the fire thus originated, having been established, it is proper to prove that it, both preceding and succeeding the setting of the fire complained of, set other fires or emitted an unusual number of sparks, or of an unusual size. But it can not be said, with even a semblance of justice, that evidence *70of the defective condition of other engines, which it is conceded did not set the fire complained of, is admissible to prove that the engine which is presumed to have set the fire, was also defective. In this case the evidence is uncontradicted that the engine attached to a particular train, which passed the point where the fire started just prior to the time the fire was discovered, is the one that set the fire, if it originated from an engine, and it is conceded that the engines concerning which plaintiff’s witnesses testified did not set the fire. It matters not, therefore, what the condition of other engines might have been, so long as the -engine which is pi'esumed to have set the fire is in good condition and repair, and did not emit sparks. If evidence of the condition of other engines is admissible to prove that the engine in question is out of repair, the converse is true, and it is proper, by such evidence, to prove that it is in good condition and repair, even though the evidence may be clear and uncontradicted that it did emit sparks. Erie R. W. Co. v. Decker, 78 Pa. St. 293; Gibbons v. Wisconsin Valley R. R. Co., 58 Wis. 335.
Railroad companies not only have the right, but they are compelled, to use fire to generate steam to operate their roads, but in that use they are required to use due care to prevent others from being injured thereby, and it has been long settled by an unbroken line of decisions that when the most approved spark arresters in general use on the best regulated railroads, are used, and they are kept in repair, and the engine is, properly operated and managed, the company is not liable for the escape of fire.
The fact that the fire originated from sparks emitted from an engine raises no presumption of negligence. Sheldon v. Hudson River R. R. Co., 14 N. Y. 218; Rood v. New York, etc., R. R. Co., 18 Barb. (N. Y.) 80; Terry *71v. New York Central R. R. Co., 22 Barb. (N. Y.) 574; Field v. New York Central R. R. Co., 32 N. Y. 339; Ellis v. Portsmouth, etc., R. R. Co., 2 Neb. 138; Hull v. Sacramento, etc., R. R. Co., 14 Cal. 387; Henry v. Southern Pacific R. R. Co., 50 Cal. 176; Philadelphia, etc., R. R. Co. v. Yerger, 73 Pa. St. 121; Railroad Co. v. Yeiser, 8 Pa. St. 366; Kansas, etc., R. W. Co. v, Butts, 7 Kans. 308; Atchison, etc., R. R. Co. v. Stanford, 12 Kans. 354; Burroughs v. Housatonic R. R. Co., 15 Conn. 124; Ruffner v. Cincinnati, etc., R. R. Co., 34 Ohio St. 96; Gandy v. Chicago, etc., R. R. Co., 30 Iowa, 420; Garrett v. Chicago, etc., R. W. Co., 36 Iowa, 121; McCummins v. Chicago, etc., R. R. Co., 33 Iowa, 187; Redfield on Railways, section 125; Pierce on Railroads, pages 436 and 437, Indianapolis, etc., R. R. Co. v. Paramore, 31 Ind. 143; Pittsburgh, etc., R.W. Co. v. Hixon, 110 Ind. 225; Chicago, etc., R. R. Co. v. Ostrander, 116 Ind. 259.
The mere fact that fire is discovered shortly after the passage of a train raises no presumption that sparks were emitted and the fire originated therefrom. Karsen v. Milwaukee, etc., R. W. Co., 29 Minn. 12; Brusberg v. Milwaukee, etc., R. W. Co., 55 Wis. 106.
The evidence not only fails to establish a delivery of the hay to the defendant, but, on the contrary, shows that the defendant refused to accept it. The plaintiff himself testified that the defendant refused to accept the hay, saying that it could not get cars in which to ship the same. Without evidence to establish a delivery to the defendant, there could be no recovery under the first paragraph of the complaint.
The evidence also fails to show that the plaintiff did not contribute to his own injury, but, on the contrary, shows that knowing the danger to which his hay would be subjected if placed in close proximity to the defend*72ant’s railroad, he did so place it, thereby contributing to his own injury.
As said by the Supreme Court of Wisconsin in the case of Murphy v. Chicago, etc., R. W. Co., 45 Wis. 222: “We see no reason why a man who recklessly and unnecessarily exposes his property to destruction by fire in the immediate vicinity of a railroad, which from the necessity of the case must use the dangerous element in carrying on its business, should as a general rule be protected, if by the use of ordinary care he could have avoided its destruction, any more than the man who recklessly and unnecessarily places his property upon the track, and it is thereby destroyed.”
For one to place property of a highly inflammable character upon the right of way of a railroad and so near the track that fire is liable to be communicated thei’eto from passing engines, does not take such precautions for the preservation of his property as an ordinarily prudent man would do. Such acts are not merely evidence of negligence, but constitute negligence itself.
There could be no rightful recovery under those paragraphs of the complaint wherein it is sought to recover on account of the negligence of the defendant, for the reason that the plaintiff contributed thereto.
For the above reasons, very hastily prepared, I think the judgment should be reversed.
Filed Nov. 7, 1893.