The opinion of the Court was delivered by
Bermudez, C. J.This is an action to recover from the defendant the value of a barn and contents destroyed by fire, alleged to have been occasioned by sparks ■ emitted from the smoke stack of one of the company’s locomotives, on the evening of December 11th, 1887.
The charge is that, the injury is attributable to the fault and nogligenre of the defendant, in failing to use such scientific improvements as would have prevented the emission of sparks and consequent destrucstruction of property by ignition.
Practically, the answer is the general issue and a special denial of negligence.
From the judgment, rendered on a verdict for about half the amount claimed, the defendant presents this appeal.
In a suit like this, brought against a chartered company, it is necessary that a plaintiff should prove two things, viz:
1. That the fire was occasioned by sparks emitted from defendants’ locomotives; and
2. That, to all probability, the injury caused is the result of the carelessness and negligence of the defendant.
The evidence establishes conclusively, that the barn and contents, consisting in a large quantity of valuable pea-vine hay, were destroyed by fire, on the evening of the 11th of December, 1887, between the hours of 6 and 7, shortly after the passage of a south bound locomotive and train of defendant. It also shows, that the hay house was situated at a short distance of one hundred and fifty feet from the road and that it had an opening facing the track.
It is admitted by the plaintiff that “ there was no eye witness to the ignition of the barn by the sparks from the defendant’s engine,” but it is claimed that the circumstances point to that fact; that there is no counter theory offered by the defendant and that the damage is chargeable to the absence of caution and to the negligence of defendant.
Several witnesses were heard on behalf oí plaintiff. Two declare that they were on a road, at about twenty to thirty feet from the shod, when the train passed; that the locomotive was emitting numerous sparks as large as the end of the thumb; that there was a high wind from the north, in the direction of the barn, and sparks may have gone, one says, about an acre, the other, a hundred feet; that they noticed the barn on fire some five minutes after the passage of - the train, the fire *99coming out of an opening in tliefbuilding .toward the track. Two other witnesses testify, that they saw'áre set by sparks from defendant’s engine to rice, hay and corn fields at distances ranging from forty to one hundred feet. A last witness, the stable minder of the hay house, says, that, on the day of the occurrence, between 6 and 7 o’clock p. m., he was on the gallery of his house, which faces east, at a distance of some twenty-five feet from the road, when the train, which was behind time-went through; that he did not exactly notice that sparks were emitted from- the locomotive on that particular day, although he did on other occasions. On cross-examination, he declares that he smokes, went into the hay house between 3 and 4 o’cloch, was not then smoking, smokes only when in his house. This is all of plaintiff’s jiroof.
Had plaintiff rested his case here, it might possibly bo claimed that the judgment rendered, is justified; but it is difficult to conceive how, in the presence of all the counter proof introduced by the defence, such judgment can be sustained.
Whatever might be the force of plaintiff’s evidence, as circumstantial proof, if it stood alone, it would be circumstantial proof only. In estimating its force all the circumstances must be considered together. In doing so, it is apparent that the evidence adduced by the defendant establish circumstances, which overthrow and destroy the effo'ct of plaintiff’s testimony.
The evidence of plaintiff is purely conjectural and to a certain extent, not to be underrated, self-destructive.
It surely does not show that the sparks omitted from the locomotive were seen flying, or carried in the air, from it, to the shed and that, on “falling there, they set the building on fire. Neither does it establish that the accident, if it happened as alleged, is attributable to the carelessness and negligence of the company in not using proper appliances to prevent such occurrences and injury to proi>erty ■ or that, under the circumstances, it exhibits a condition of things which shifts the burden of proof from his shoulders upon the defendant, which as a chartered corporation may be entitled to greater immunity than if not authorized by law.
It would serve no useful purpose to discuss that interesting question which, however, considered and dealt with by other courts of last resort, in our sister States and abroad, has not been passed upon in this State as yet.
Conceding arguendo, however, that the plaintiff has by the juoof adduced, thus shifted the burden, we are clear that the testimony offered by the defendant is of such grave character, as entitles it to serious con*100sideration, before treating it as nugatory and inflicting on a corporation, legally empowered to carry on the business of transportation by steam power necessarily generated by lire, tlie reparation of damages for which it would uot otherwise be amenable.
The engineer who drove the locomotive, from the smoke stack of which, sparks are said to have been emitted which destroyed plaintiff’s hay house, says, that, when he passed through the plantation, she was throwing some little sparks and some fine dust of sparks that came out alive from the stack; that they could be seen, if it was dark enough; but that, he thinks, it was not dark enough that time to see them plainly; that the engine did not throw sparks very far, that he comXilained of her blowing them too close down inside the cab ; that it was a mighty poor engine for getting rid of the sparks, that he tried to get a change of cone, as the one she had was too large, as it made the engine work against herself in regard to steam and throwing the sparks down. He says that the stack used is known as a diamond stack, x>rovided with a cone and a netting, or spark arrester, which are tried and successful npx>liances, used for the purpose of preventing large sparks from passing through the stack, which, when forced up by the steam from the tiro to the stack, are, when large, beaten up and down under an internally supported surface, or circular roof, under the netting, until, by this process, reduced to such small size, as will x>ermit them to pass harmlessly through the netting,— the parts pulverized being sent back and expelled by the lire box beneath.
The master of transportation declares positively that, after sparks leave the stack, they are thrown straight in the air and may possibly get as far as fifteen or twenty Coot from the centre of the rail, owing to the velocity of the train ; that, when it runs fast, the sparks do not go even that far; that a spark, coming through the netting on the smoke stack, used on the locomotive in question, would live fifty feet, either side of the track; that it is im]iossiblo to xiass any thing through ■Hhe netting that is not. ground up to one-sixth of an inch; that a gallon of sparks emitted through the netting weighs about three and a half pounds, and this gives an idea of how -many sparks there are in it and what is the weight of each one.
The foreman of the machine shox>s says, that it would be just as absurd to attribute that fire to the sparks emitted from that engine, as to attribute it to the sparks from an engine in England. A spark emitted, lie says, from a diamond stack would have to he fired out of a gun to roach a distance of forty feet, as, there is no weight in the spark to carry it that distance, and no coal or wood spark could be alive on *101reaching that distance. Its fast speed through the air would chill a coal spark before reaching that distance, and would break a wood spark to atoms.
Tt is not claimed that any but .coal was used in this case.
The master mechanic says, that sparks might go behind the train as far as a hundred feet, but could hot set anything on fire beyond that distance, and that he does not think that it is possible that the barn in question could harm been set on lire by sparks emitted from the locomotive alluded to, supplied as she was.
Another master mechanic corroborates this testimony, resting his opinion on facts, also.
The chief engineer of the New Orleans Fire Department says, that he has an experience of twenty years in combatting and extinguishing fires, and that it is not reasonable to suppose that a spark of a quarter of an inch could set fire to anything after traveling twenty-five or thirty feet through the air, and that a locomotive, running at such speed and the wind blowing hard, could not throw sparks alive much further.
The testimony of those witnesses is unimpeaclied. It bear the semblance of truth in all of its parts and cannot be considered as barren of effect or suspicious, simply because it emanates from employees of the company.
The discrepancy between the testimony of two of plaintiff’s witnesses as to the size of the sparks and the distance through which they wafted, and that of other witnesses on the same or kindred subjects, is easily accounted for and reconciled by the notable and recognized circumstances that, owing to a certain optical delusion, the size of a light and the space through which it may be carried, during darkness, are by a wise dispensation of nature invariably magnified to considerable disproportion.
Were it true that, from the facts proved by the plaintiff, namely : the passage of the train, the emission, of sparks from its smoke stack,-and five minutes afterwards, the ignition of the barn, a presumption arose that the fire was occasioned by the sparks emitted, which threw the burden of contradiction and of proof of proper care and attention, etc., on the company, we think that the testimony thus offered has effectually repelled' that presumption by establishing quite the reverse, namely: the talcing of all the required precaution' and the physical impossibility of the occurrence, under the circumstances charged.
It is such as well suggests the probability of fire from some other cause, which may be imagined, either because the barn was exposed to such accident, by being on a road of foot and vehicle traveling, or was *102in cliarge of one wlio smoked and who accidentally or without noticing it, might have been instrumental in the accident, or spontaneous combustion, or some other cause.
Aj>art from these considerations may it not well be asked: whether the plaintiff was not guilty of contributory negligence, by having an ox>ening in the hay house towards the track and by leaving it unclosed, as it must have been, if the fire was occasioned by some external cause, and besides: whether, under the circumstances, the fact of the plaintiff’s barn, being at a distance within which it could be set on fire by sparks from locomotives (taking his theory for true), the maxim, volenti non fit injwia, may not be applied?
A close examination of the testimony satisfies us of the identity of the smoke stack or spark arrester referred to by the witnesses with that used on the locomotive in question, so effectually, that we deem it unnecessary to discuss that matter of fact.
We conclude that the defendant had just cause to appeal.
It is, therefore, ordered and decreed that the verdict of the jury be set aside and the judgment upon it be reversed and annulled and that there now be judgment in favor of defendant rejecting plaintiff’s demand, with costs in botli courts.