Two defenses are set forth in the answer of the company; one a plea in abatement because of the misnomer of the company; the other was.an answer to the merits. By answering to the merits, the company entered its appearance, and it was not error to permit the petition and summons to be corrected by inserting the true name of the defendant below. Section 5114, Rev. Stat.; Elliott v. Lawhead, 43 O. S., 171, 172.
The assignments of error as to the charge of the court and the refusal to charge as requested by the railroad company, raise the question as to the degree of care required of a railroad company to prevent the spread of fire from its locomotives. A high degree of care is demanded.
For this purpose it must not only use the best known contrivances in general use for this purpose, but the locomotive, spark-arrester and other conti ivances must be kept in good repair, and a failure to take these precautions is such negligence as will render the company liable for the damage which is the result of such negligent acts. But liability will not arise from the mere proof that a fir.e occurred from sparks emitted from a passing locomotive, and that an invention was in existence, by the use of which the injury might have been prevented. To fix the liability of the company, it .must further appear that such invention was in common or general use, so as to have had the approval of experience. Jackson v. Chicago & N. W. Ry. Co., 31 Ia., 176; Field v. The N. Y. Central R. R. Co., 32 N. Y., 339; Shearman & Redfield on Negligence, secs. 332 and 333.
Was the charge of the court in this particular prejudicial to the plaintiff in error? The evidence shows that the spark-arrester known as Smith’s patent, was used at the time, of the fire on locomotives of this company. The same patent was used on the “Pan Handle,” the C., C., C. & I. R. R. and the “Nickel Plate,” and to use the language of one of the witnesses, “on all straight stacks.” We think the testimony submitted to the jury did show that the spark-arrester in use on locomotive No. 1-2, was in general use, and was one of the best. But the principal question submitted to the jury was as to the condition of the one. on the locomotive at the time of the fire. There was evidence tending to show that it was out of repair.
The language used by the court was as follows: “The defendant was bound by law to have such apparatus to prevent the escape of sparks from its locomotives, as was then, at the time of this burning, -generally used, approved and adopted for that purpose.” There is no question made in the record" but that the Smith patent was so generally used and approved by experience.
There is no error in this part of the charge, as we think.
The fourth request to charge, which was refused, presents the question as to' whether ,the mere.inspection of-the spark-arrester and other appliances to prevent *18the emission of sparks from locomotives, before starting over a line of railroad is all that is demanded of a company, if on such inspection it was found to be in good order and condition; but after starting some defect occurred m the sparkarrester, or other appliances, without the knowledge of the defendant company.”
We do not think that the mere inspection of a locomotive, spark-arrester and appliances, by á company, however carefully performed, is sufficient to protect the company from liability. After an inspection and the locomotive is started and passed over ten miles of road, suppose it is then observed to be defective, and out of repair, and fires are being ignited, may the company run that defective locomotive over its entire line and avoid liability because it had no actual knowledge? Or suppose the defect is one that the engineer should have sufficient skill to repair, but neglects to do it, and property of farmers all along the road is consumed by this negligence, is it a sufficient answer to say that the company inspected the locomotive before it was sent out, and it became defective immediately after it started, and without actual knowledge to the company? I think the company is not only required to have its locomotives and appliances in good condition, when they are sent out, but it is required to keep them in good condition on all parts of its road. Any other rule would work great damage to the farming community.
The eleventh charge requested and refused, is as follows:
“If the plaintiff fails to prove that on the day the plaintiff’s premises were burned, the defendant carelessly and negligently omitted to use a spark-protector or arrester, and proper appliances to prevent the emission of sparks from the locomotive that set fire to said plaintiff’s premises, then the plaintiff cannot recover, notwithstanding the emission of sparks from such locomotive.”
' It is not a difficult matter for the engineer to observe that his locomotive is dropping fire from its fire-box and emitting burning cinders from its stack. The farmer 'through whose lands it passes, can readily observe the same, and, that fires have been started ánd that his property has been destroyed by the fire that fell from that locomotive. The locomotive and its engineer in a few hours is a hundred miles away from the farmer’s burning property, with no opportunity for the farmer to inspect the locomotive and ascertain its defects. It is under the exclusive control of the company and its agents, with the skill and opportunity to remedy the defects or to show that the company has been without negligence. It is an easy matter for the company to do this if it is without fault, but it is almost, if not quite, impossible for the farmer to prove that the particular locomotive that caused his damage was defective in any given particular.
If fee plaintiff below was able to establish,- by competent evidence, that the fire was caused by coals or sparks dropped or emitted from the locomotive o-/ the company, and that locomotives properly constructed and in good order woulu not drop coals or emit sparks, we think it then devolved upon the defendant below to establish the fact that its locomotive and all its appliances were properly constructed and in good order.
The court properly refused said charge. Field v. The N. Y. Central R. R. Co., 32 N. Y., 339; Shearman & Redfield on Negligence, secs. 332 and 333; Coale v. H. & St. J. R. R. Co., 60 Mo., 227, sustain us in this conclusion.
The twelfth request to charge was prop&rly refused. A railroad company cannot avoid liability for the destruction of property by fire from its locomotive by showing that it has provided it “with a spark-arrester which experience had. proved to be useful and reasonably effective for the preservation of fires.” The company must use the best spark-arrester in common or general use; or it must be as good in every respect as those so generally adopted. It is no defense to say it was only reasonably effective for the purpose.
Nor do we think the fact that there was a high wind, by reason of which there was a greater draft causing fire to escape and communicating it thereby to the fields and property of the plaintiff, is any excuse for the company, unless it’ *19further appears that the effect of high wind on locomotives properly constructed and in good order, provided with the best spark-arrester in general use, necessarily causes them to drop or emit fire. Kellogg v. The Chicago & N. W. Ry. Co., 26 Wis., 223.
Tyler & Stockwell, for plaintiff in error. F. Douthitt, for defendant in error.The plaintiff in error offered the testimony of a witness to show that at the time the property was destroyed for which this suit was brought in 1884, The Cleveland, Columbus, Cincinnati & Indianapolis R. R. Co., used the spark-arrester known as Smith’s patent, being the same patent used by defendant below, and that all along the line of the C., C., C. & I. Railroad, the country “was substantially burned up,” from sparks that fell from the smoke-stacks. This was excluded, and we think properly. The admission of that class of testimony involved an investigation, not only of the kind of spark-arrester in use on the C., C., C. & I. Railroad, but also of the condition of each one used at the-time of the alleged fires. This was a collateral matter, in no way proper to be submitted to the jury on the trial below.
Judgment affirmed.