On Rehearing.
In their motion for rehearing appellees insist with much earnestness that we erred in our opinion upon original hearing that the appellant’s special plea of contributory negligence presented a valid defense to the suit. In our former opinion it was stated that one of the grounds of negligence relied upon by the plaintiffs was the failure of the defendant company “to burn fireguards for a width of about 200 feet on each side of its right of way, as for a number of years it had been in the habit of doing, so that fire starting in weeds and dry grass upon defendant’s right of way would not spread to plaintiffs' land.” That allegation of negligence was contained in plaintiffs’ original petition, but was not embodied in the amended petition upon which the case was tried, and hence was not relied upon by the plaintiffs upon the trial of the suit. The original petition, as well as the amended petition, were contained in the record, and through inadvertence we referred to the original petition rather than the amended one, and the reference to that issue in the original opinion is now withdrawn.
Appellees have cited a great array of authorities from numerous states, as well as from our own state, announcing the general rule that it is not incumbent upon any one to anticipate the negligence of another which may probably result in his injury, and specifically that an owner of land adjoining a railroad right of way has the right to subject it to any lawful use he may see proper, and cannot be held guilty of contributory negligence in permitting combustible material to accumulate on his premises which is ignited through the negligence of the railway company in the operation of its trains. Appellant insists that many of those decisions, when properly understood, are not in conflict with the decision in the Arey Case. We shall not undertake to discuss them, for however that may be, the decision in the Arey Case is unquestionably binding upon us, and we think of controlling effect in the present suit:
Appellees insist, further, that the facts of the present suit differ materially from those in the Arey Case, and that hence the decision in the Arey Case should not be given controlling effect here. It is true that the facts are different, but we are of the opinion that the underlying principle is the same in the two cases.
The motion for rehearing is overruled.