On Rehearing. The statement in Deason v. Alabama Great Southern, supra, on the subject of the burden of proof in cases like this, was repeated in Southern Railway v. Slade, 192 Ala. 570, 68 So. 867, but hardly under circumstances to make it more authoritative than in the first-named case, as we find upon consulting the original transcript of the record on file in this court. On consideration that this question will recur, and that it should be decided on correct principle, the court adheres to the ruling expressed in its first opinion. Louisville Nashville v. Miller, 109 Ala. 500, 19 So. 989, is also cited by appellees to this point. But, very clearly, the opinion in that case is inapt. It deals with the sufficiency of the complaint. But, while the question of the burden of proof was not at issue, the court was far from any expression in favor of appellees' contention. The court said that the *Page 63 presence on the right of way of sufficient dry grass for ignition and communication of fire to adjacent property was evidence of negligence, for which the railroad company would be liable "if it was there in consequence of the defendant's negligence"; and in Southern Railway v. Slade, supra, a case on all fours with this, the court held that defendant's liability was a question for the jury. For these reasons, thus briefly stated, the court is of opinion that the application for rehearing should be overruled.
Application overruled.
All the Justices concur.