#### Helena Southwestern Railroad Company v. Coolidge.

Opinion delivered October 19, 1925.

1. Railroads — liability for fires — validity of statute. — The act of April. 18, 1907 (Crawford & Moses’ Dig., § 8569), making railroad companies liable for the destruction of or damage to property caused by fire resulting from the operation of such railroads, is not invalid as denying to such corporations due process or the equal protection of the law.

2. Railroads — liability for fires — construction of statute. — The term “railroad,” as used in Crawford & Moses’ Dig., § 8569, refers only to railroads that are operated as common carriers, and does not apply to corporations which operate a railroad as an incident to, or in connection with an industrial enterprise.

3. Railroads — common carriers. — 'Where defendant is a regular organized railroad company, it does not cease to be a common carrier, within Crawford & Moses’ Dig., § 8569, because it is engaged in carrying a particular kind of freight for a single customer, since it can be compelled to carry freight for all who offer it for shipment over its line.

4. Railroads — liability for fire — evidence.-—Where grass near defendant’s railroad, track is -discovered to be on fire shortly after a train has passed, and the fire spreads to and burns the property of another, -and the proof does not establish conclusively some other origin of the fire, the jury is justified in finding that the fire originated from -the sparks of defendant’s locomotive.

Appeal from Phillips Circuit Court; E. D. Robertson, Judge;

affirmed.

Moore, Walker <& Moore, for appellant.

W. G. Dinmng, for appellee.

*553Hart, J.

C. E. Coolidge sued the Helena Southwestern Eailroad 'Company to recover damages to his alfalfa field caused by fire alleged to have been communicated from a locomotive operated on the line of the railroad of the defendant.

There was a verdict and judgment in favor of the plaintiff in the sum of $1000, and the defendant has appealed to this court.

The first assignment of error is that the court erred in instructing the jury. In making this contention counsel for the defendant rely upon the action of the court in allowing the jury to find for the plaintiff independently of negligence, if it should find that the damage occurred by reason of fire communicated from the locomotive of the defendant to the alfalfa field of the plaintiff.

This court has held in St. Louis & S. F. R. Co. v. Shore, 89 Ark. 418, and numerous other cases that § 8569 of Crawford & Moses’ Digest, making railroad comr pames liable for the destruction of or damage to property caused by fire resulting from the operation of such railroads, is valid and does not deny to the railroad companies the equal protection of the law, and does not deprive them of their property without due process of law.

This court has also held that the term “railroad,” as used in this section, refers only to railroads that are operated as common carriers, and does not apply to corporations which only operate a railroad as an incident to, or in connection with an industrial enterprise. Valley Lbr. Co. v. Westmoreland Bros., 159 Ark. 484.

Counsel for the defendant seek a reversal of the judgment upon the authority of the case last cited: but in doing so have not taken into proper consideration that the principles' of law there decided have no application to the facts of the case at bar.

L. J. Wilkes, superintendent of the railroad of the defendant, was the only witness on this point. We quote from his testimony the following:

> *554“Q. It is a railroad corporation and exercises the rights and powers of any other railroad corporation, does it not? A. Yes sir — how yon mean? Q. It is a regular railroad corporation? A. It is a regular railroad, utilized for the sole purpose of conveying logs for the Chicago Mill & Lumber Company. Q. But it is a regularly organized railroad company? A. Yes sir, it is a'regularly organized railroad company.”

In another part of his testimony, he says that his company owns -a comparatively small trackage of its own, which runs from the mill of the Chicago Mill & Lumber Company to the tracks of the Missouri Pacific Railroad Company and one of its branch lines. It stated further that these companies are regularly established railroads in the general railroad business. The defendant had standard railroad equipment which it operated in part over the tracks of these two railroad companies.

* Now, it is apparent from his testimony, that the defendant was duly organized as a railroad under the statutes of the 'State of Arkansas. -See sub-division 2 of chap. 149 relating to the incorporation, organization, and existence of railroad companies.

'Section 8450 of Crawford & Moses’ Digest defines the powers and liabilities of such corporations. Railroad corporations which are organized under the provisions referred to are given certain general powers and are subject to the general liabilities and restrictions expressed in the statute. In other words, when the defendant was organized as a railroad company, as testified to by its superintendent, it became a common carrier under the statute referred to, and has all the powers and is subject to all the restrictions of common carriers. If the defendant is a regular-organized railroad company, it can not cease to be a common carrier because it may only carry a particular kind of.- freight for a single customer. It could be compelled to carry freight for all who offered it for shipment over its line. Therefore, under the undisputed evidence, if there was *555liability at all on tbe part of tbe defendant, it was an absolute liability, and tbe question of negligence does not enter into the case.

It is next insisted tbat tbe evidence .is not legally sufficient to show tbat tbe fire wbieb destroyed tbe alfalfa field of tbe plaintiff was communicated by tbe operation of one of tbe defendant’s locomotives.

Tbe undisputed proof shows tbat tbe defendant operates an engine which burns coal, and tbat sparks are emitted from it which fall on its right-of-way. Tbe alfalfa field of the plaintiff burned shortly after, one of tbe defendant’s engines bad passed by it. It is tbe theory of tbe defendant tbat there was a corn field belonging to tbe plaintiff on tbe opposite side of tbe railroad track from tbe alfalfa field, and tbat tbe plaintiff’s own servants bad fired some corn-stalks; tbat the wind rose and caused tbe fire to cross tbe right-of-way of tbe defendant and burn tbe alfafa field of tbe plaintiff.

Several witnesses for tbe defendant testified tbat tbe fire was communicated to tbe alfalfa field in this way, and other facts and circumstances were introduced in evidence by it tending to show that tbe fire could not have resulted in any other way.

It can not be said, however, tbat this evidence is uncontradicted. Several witnesses for tbe plaintiff testified positively tbat there was no fire in the cornfield on the day in question, and tbat they observed a fire in some grass on tbe right-of-way of tbe defendant immediately after its engine passed, and tbat this fire spread rapidly in tbe direction of tbe alfalfa field and burned it. They saw tbe fire spread from tbe right-of-way into the alfalfa field and burn it.

This court has repeatedly held tbat where grass near a railroad track is discovered to be on fire shortly after a train has passed, and tbe fire spreads to tbe property of another and burns it, and tbe proof does not establish conclusively some other origin of tbe fire, the jury is justified in finding tbat tbe fire originated from sparks of tbe engine. Cairo, Trumann & Sou. Rd. Co. v. Brooks, *556 112 Ark. 298, and cases cited. As we have just seen, the evidence for the plaintiff showed that the grass commenced to burn on the right-of-way of the railroad just after one of its engines passed, and the same witnesses testified that there was no other source from which the fire might have occurred.

There is also dispute between the witnesses as to the value of the alfalfa, and as to the fact of whether it was completely destroyed by the fire. Here again the jury has settled the conflict in the evidence in favor of the plaintiff, and the evidence for the plaintiff warranted the jury in finding a much greater value for the alfalfa, which was damaged and destroyed, than that shown by the verdict of the jury.

It follows that the evidence was legally sufficient to warrant the verdict of the jury, and, there being no reversible error in the record, the judgment will be affirmed.