delivered the opinion of the court.
John L. Gray sued the M. & O. R. R.. Company to recover damages sustained on account of his fence, timber, and crop being burned or injured by fire alleged to have been caused by the negligence of the employees of the railroad company. On the trial it was shown that the crop said to have been injured belonged to a tenant on plaintiff’s land, and it is manifest from the record, that that item was not allowed or embraced in the verdict and judgment from which the appeal is presented here by the railroad company. It appears from the testimony that a fireman or engineer on. one of the passing trains of the railroad company threw a burning stick of wood from the engine, which fell between the railroad track and plaintiff’s fence on ground thickly covered with grass, and that the grass took fire and the fire spread rapidly to appelleels fence and land and produced the injury complained of. It seems that the fire when thrown from the engine fell on land belonging to the railroad company as part of their right of way. The evidence for the appellee as to these points and the amount of damage suffered ivas not controverted by the railroad company. It does not appear whether appellee had any notice or knowledge of the fire until after it was over, or Avhether he was in position to prevent injury from it, or whether any effort Avas made by appellants or their employees to extinguish the fire or prevent its spreading, but it is shoAvn that an attempt to do so by others was unavailing.
The negligent use of fire renders the party so using it liable for the consequences resulting therefrom. -In an action to recover damages occasioned by fire, the burden of proof is on the plaintiff to shoAV that the injury is imputable to the negligence or miscon*386duct of the defendant or his servants, but the obligation on this point is met when it appears that the fire was kindled at a time and place in which it was likely to spread, as it did, or pass beyond control, or that it was afterward left without- proper care. Cooley on Torts 590; Whart., Law of .Neg., §§ 870, 871.
Such an act by the employees of a railroad company implies negligence, without reference to § 1059 of our code, which provides that “ in all actions against railroad companies for damage done to person or property, proof of injury inflicted by the running of the locomotives or cars of such company shall be primd facie evidence of the want of reasonable skill and care on the part of the servants of such company in reference to such injury.” It often occurs, as in this case, that the same evidence which proves the injury shows such attending circumstances as to raise a presumption of the offending party’s negligence, so as to cast upon him the burden of disproving it. Cooley on Torts 590, 661, 662; Whart., Law of Neg., §§ 97, 865, 871 ; 1 Taylor on Ev., §§ 187, 188.
Section 1054 of the code, which declares that “ every railroad company shall be liable for all damages which may be sustained by any person in consequence of the neglect or mismanagement of any of their agents, engineers, or clerks, or the mismanagement of their engines,” is substantially an affirmance of the common law on that subject, and applies in a case like the one under consideration.
The charter which authorizes the use of fire and steam to propel the engines of a railroad company does not warrant the throwing of fire from their engines on grass or other combustible materials, to .the. injury of others, as it appears to have -been done in this case.
Affirmed.•