On the Merits.
PROVOSTY, J.A building belonging to one of the plaintiffs in these two consolidated cases, which the other plaintiff leased for operating a moss factory, was destroyed by fire caused by sparks emitted by a locomotive of the defendant company. The owner of the building testifies that it was situated 75 to 80 feet from the railroad track, and so does another witness; but the diagram offered in evidence by the plaintiffs shows that the right of way of the defendant company extends only 67% feet from the track on that, side, and that the entire platform of the building in question was within the right of way, while the front of the main body' of it was on the line of the right of way. The evidence shows that loose moss and inflammable trash lay in front and on the side of the building, and that the fire originated in this loose moss and inflammable trash and invaded the building.
The fire occurred in the afternoon of the 26th of January. The spark-arresting apparatus of the locomotive (which is shown to have been an up-to-date modern equipment or standard) was inspected a few hours after the fire, and was found to be in perfect condition. It had been inspected on the day before the fire and found to be in perfect condition. It was again inspected on the day after the fire and found to be in perfect condition. It had been inspected four days before the fire and found to be in perfect condition. It was inspected ten days after the fire and found to be in perfect condition. These inspections were made by three different men, whose competency in the premises and honesty are not questioned.-
The defendant does not plead contributory negligence on the part of the plaintiffs, but urges that it owed no further duty to plaintiffs than to take reasonable care and precaution against injuring plaintiff’s property, and that it ■ fulfilled that duty completely, and was therefore not negligent and in consequence is not liable for the loss.
We cannot see that the defendant company could have done more than it did in the discharge of its duty not to injure plaintiff. It provided its locomotive with approved modern apparatus for arresting sparks, and saw to it that this apparatus was in per-, feet order.
A colored girl, cook of one of the plaintiffs, and a colored woman and a colored man living within a stone’s throw of the plaintiffs, testify that they noticed that the fireman was shoveling coal into the furnace when the engine was passing this factory. The fireman contradicts this; and he explains that, being compelled to be ringing the bell while passing through towns (this factory was in a town), he could not-have been just then firing his engine, and that, moreover, firemen are strictly enjoined not to fire their engines while passing through a town, but only in the open country. A strong wind was blowing across the railroad, which a fireman would know would carry sparks to the buildings of the town along the railroad. This makes it the more improbable that he would choose exactly the moment of passing through the town for firing his engine. The engineer is positive that the fireman was not firing when passing through the town, but was ringing the bell. We cannot accept the testimony of the said colored people as outweighing that of these two white men, especially that the latter is supported by all the probabilities of the matter; at any rate not sufficiently outweighing for positively establishing plaintiff’s case on this point.
*561[2] The law is not that a railroad company is liable in damages for every fire its locomotives may cause to property along its tracks. “No liability to answer in damages for injuries caused by such fires attaches in the absence of negligence.” 11 R. C. L. 961. If “proper care and precaution has been used the company will not be liable.” 33 Cyc. 1325; Elliott on Railroads, p. 1221. In addition to the very numerous decisions cited in support of these texts, see, for more recent decisions in the same sense, Railroad Co. v. Wheeler, 6 Ga. App. 270, 164 S. E. 1114; Sims v. Ice Co., 109 Md. 68, 71 Atl. 522; Deppe v. Railroad Co., 152 N. C. 79, 67 S. E. 262; Jacobs v. Railroad Co., 68 W. Va. 618, 70 S. E. 369; Railroad Co. v. Mentzer, 214 Fed. 10, 130 C. C. A. 404; Railroad Co. v. Peck (Ind. App.) 114 N. E. 475; Timber Co. v. Railroad Co., 82 Or. 185, 161 Pac. 398; Insurance Co. v. Railroad Co., 96 Wash. 113, 164 Pac. 765; McCullough v. Railroad Co., 44 Utah, 337, 140 Pac. 767. See syllabus in Edrington v. Railroad Co., 41 La. Ann. 96, 6 South. 19.
Lemann v. Railroad Co., 128 La. 1089, 55 South. 684, and Tortorice v. Railroad Co., 142 La. 229, 76 South. 620, contain nothing contrary to the foregoing. The court there found that the fact of the spark-arresting apparatus having been in good condition was not positively established. In this case we think it was. In fact, we do not see what more or better proof could be expected of a railroad on that point than was administered in this case. In Fuller v. Chicago, 137 La. 997, 69 South. 804, the railroad was found to have been negligent in the manner of operating the train, and the efficiency of the spark arrester was left doubtful by the evidence. In the case at bar the train merely passed by the buildings on its regular course; and the efficiency of the spark arrester is fully testified to, and a sample of the wire mesh out of which the screen of the spark arrester was made is produced in court, and it shows that a spark would have to be very small indeed to pass through it. In Thomason v. Kansas, etc., R. Co., 122 La. 995, 48 South..432, the spark arrester was shown to be defective. In Brady v. Jay, 111 La. 1071, 36 South. 132, the locomotive was a wood-burning locomotive, admittedly more dangerous than the coal-burning locomotive.
The evidence shows that the roofs of buildings along the defendant company’s railroad have been set on fire by sparks from its locomotives. The locomotives which did this may have been defective.- Had the fire originated on the roof of the building in the present case, this would have gone far towards showing that either the spark-arresting apparatus was defective or that the locomotive was being negligently operated, but it does not take a very large spark for setting dry moss or inflammable trash on fire on a dry day'; and the fire conditions on the present occasion were exceptionally good, for the train had hardly passed before the building was in flames. The operation of a moss factory so close to a railroad is in itself dangerous, and extra care should be taken not to increase the risk by leaving dry moss outside or hanging out from windows or inflammable trash which an ordinary locomotive spárk may set on fire. If a thing of that kind is done, there enters into the ease an element such as led this court to question, in Edrington v. Railroad Co., 41 La. Ann. 102, 6 South. 19, whether the maxim, “Volenti non fit injuria,” did not apply. Railroads must be operated, and no means has yet been found, so far as this court is informed, of preventing entirely the emission of sparks in the ordinary operation of freight engines using coal.
The judgment appealed from is set aside, *563and the suits are dismissed at the cost of the plaintiffs.
O’NIELL, J., dissents from the conclusion of fact.