#### A. Silver, Plaintiff in Error, v. Chicago & Northwestern Railway Company, Defendant in Error.

Gen. No. 5,979.

(Not to he reported in full.)

Error to the Circuit Court of Boone county; the Hon. Charles H. Donnelly, Judge, presiding.

Heard in this court at the October term, 1914.

Reversed and remanded.

Opinion filed March 9, 1915.

Statement of the Case.

Action brought by A. Silver against the Chicago'& Northwestern Bailway Company for the destruction of sheds adjoining a street in the city of Belvidere, on Vhich the defendant maintained switch tracks. From a judgment in favor of the defendant, the plaintiff appeals.

The evidence for plaintiff showed that in the afternoon of April 13, 1912, the sheds caught fire and that the plaintiff’s property was thereby injured; that shortly before the fire a switch, engine had passed back and forth on the street within a few feet from the sheds, hauling or pushing some freight cars; that the engine was laboring heavily, with its wheels slipping, and that sparks were- thrown therefrom onto the roof of and set fire to the sheds.

*228Abstract of the Decision.

1. Railroads, § 941 * —instruction as to burden of showing that fire was caused by locomotive. An instruction in an action against a railroad company for the destruction of property by fire, caused by sparks from a locomotive, which places the burden of proof on the plaintiff to show not only that the fire was caused by the defendant, but also that either the engine was not in a reasonably safe condition or was not managed with reasonable care and skill, deprives the plaintiff of the benefit of the Act of 1869 (J. & A. IT 8891) declaring that the fact that a fire was started by a locomotive shall be taken as full prima facie evidence to charge the defendant with negligence.

2. Railroads, § 941*—instruction as to sufficiency of evidence to show that fire was set by sparhs from locomotive. An instruction in an action against a railroad company for the destruction of property by a fire caused by sparks from a locomotive, that there was no proof that the engine in question was not provided with the most approved spark arrester, or that the engine and its appliances *229were not in good condition, or that it was not handled by a competent engineer, held not sustained by the evidence.

*228Defendant’s evidence tended to show that, in doing its switching on the day of the fire, the engine in question did not go near the plaintiff’s property; and also that a gale of wind was blowing from a direction which would in any event have prevented sparks from the engine being carried in that direction; that the engine was properly equipped, and that it was operated by a competent engineer. There was proof that this switch engine, drawing comparatively light loads, had thrown hot sparks a number of times within a few weeks before and shortly after the fire.

W. C. De Wolf and Charles W. Ferguson, for plaintiff in error.

John A. Russell, for defendant in error.

*

See Illinois Notes Dieest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

Mr. Justice Dibell

delivered the opinion of the court.

*2293. Railboads, § 932*—sufficiency of evidence to show that fire was set by sparks from locomotive. The evidence in an action against a railroad company for the destruction of property by fire caused by sparks from a locomotive, held sufficient to show that the engine in question had emitted sparks when drawing comparatively light loads, both before and after the fire.