#### T. W. STEMMLER v. RANDOLPH AND CUMBERLAND RAILWAY COMPANY.

(Filed 28 April, 1915.)

1. Railroads; — Right of Way — Duty of Company — -Combustible Matter — Firing Right of Way.

It is the duty of a railroad company to keep its right of way free from combustible matter, and where in pursuance of this duty the agents of the company burn off the right of way, it is required that they use reasonable care in preventing the escape of the fire to adjoining lands, to the injury of the owners.

2. Same — Negligence—Evidence—Trials—Burden of Proof.

The employees of a railroad company engaged in burning off its right of way left one of their number in charge and proceeded to another place thereon for the same purpose. There was evidence tending to show that the plaintiff in this action had a pile of lumber at the place of the firing, and that the employee remaining to look after the fire, or to see that it did no damage, went away, leaving no one at all at the place, and soon thereafter fire broke out in the plaintiff’s lumber and damaged it. Held, sufficient evidence of the defendant’s negligence to carry the case to the jury, and the circumstances being wholly within the knowledge of the defendant’s agents as to whether they used the care required of them in putting out the fire, the burden of proof was on the defendant in that respect.

Appeal by plaintiff from Rountree, J., at January Term, 1915, of Moon®.

Civil action to recover damages for the destruction of the plaintiff’s lumber, caused by fire alleged to have been set out by the defendant’s servants on the right of way and communicated to the plaintiff’s lumber, *47located close to tbe right of way. At tbe conclusion of tbe evidence tbe court sustained a motion'to nonsuit, and tbe plaintiff appealed.

U. L. Spence, H. F. Seawell for plaintiff.

George H. Humber for defendant.

BeowN, J.

Tbe evidence in tbis case tends to prove that tbe section foreman and bands of tbe defendant were engaged in burning off tbe defendant’s right of way near Parkwood; that tbe lumber of tbe plaintiff was piled near tbe right of way at said place, and that tbe hands fired tbe débris on all sides of said lumber and then left one William Graffenried, a section band, to watch tbe first' and protect tbe lumber, tbe section foreman and other bands' going away to fire other parts of tbe right of way, and that said Graffenried left tbe lumber unprotected and went away, and fire soon'sprang up in tbe lumber and most of it was consumed thereby; that there were no other persons about tbe lumber or along tbe right of way except tbe section foreman and bands engaged in firing tbe right of way. There was further testimony as to tbe value of tbe lumber.

We think bis Honor erred in sustaining tbe motion to nonsuit. Tbe defendant was engaged in tbe discharge of a duty imposed by law of keeping its right of way free from combustible matter. To do so necessitated tbe burning of its right, of way. It was tbe defendant’s duty to .exercise reasonable care when it put out such a dangerous agency as fire. We 'think the burden of proof is necessarily on tbe defendant to show that it exercised such care and used all reasonable means and precautions to prevent tbe fire from spreading from its right of way and injuring tbe property of adjacent owners.

Tbe proof of what tbe defendant did in order to prevent tbe spreading of fire from its right of way is almost exclusively within its own knowledge and that of its agents and servants. Tbe plaintiff bad no knowledge of when tbe fire was set out and no opportunity to guard bis property. Tbe plaintiff bad no knowledge of what precautions were taken by tbe defendant; therefore, we think it reasonable to bold that tbe defendant should assume tbe burden of satisfying tbe jury that it took all reasonable precautions when its agents and servants undertook to burn off its right of way.

It is said in tbe Book of Books that “If fire break out and catch in thorns, so that tbe stacks of corn, or tbe standing corn, or tbe field, be consumed therewith: be that kindled tbe fire shall surely make restitution.” . Exodus, 22:6.

Inasmuch as tbe defendant was engaged in tbe discharge of a duty, we will not bold it to tbe rule laid down in the Holy Writ, because that would be to make it an insurer; but we think it just and consistent with *48well established precedents that in a case of this kind the defendant should assume the burden of proof to satisfy the jury that it used all due precautions to prevent the spread of the fire and injury to adjacent property.

It is incumbent on the company burning off its right of way always to guard the fire along its right of way and to take all proper precautions to prevent its spreading as long as the fire exists. Brister v. R. R., 84 Miss., 33; 33 Cyc., 1329.

There is evidence in this case that the defendant’s servants started the fire on the right of way, that it was not properly guarded by them, that it surrounded the plaintiff’s property, in consequence of which the plaintiff suffered damage. This, evidence may not be sufficient to induce the ■jury to find the defendant guilty of negligence, but it should have been submitted to them under proper instructions.

New trial: