probable negligence on the part of the railroad; he is required to take only such precautions as a person of reasonable prudence, under similar circumstances, would take to prevent the destruction of his property." A person owning property along the right of way of a railway has a right to occupy such property and erect such buildings as he may have occasion to place thereon, so that he does not occupy it with such buildings as are known to be unsafe and dangerously exposed. He is the owner of the land, and has a right to its occupancy, and has a right to occupy and use it for all legitimate uses. He is only required to use such care and diligence in the erection of buildings and protection of his property against damage by fire as an ordinarily prudent person would under all the surrounding circumstances. He is no more bound to guard his property against fire than the railroad company is to guard against permitting the escape of fire from its engines. Each are held to ordinary care and prudence in the use of their property. St. Louis & S. F. Ry. Co. v. Stevens, 3 Kan. App. 176 (43 Pac. Rep. 434).

Sec. 812. Liability of railroads for fires - Negligence. A railway company, in the operation of its railway, with locomotive engines propelled by steam, generated by fire, and drawing its trains over its road in the usual and ordinary manner, is not liable for damages done by the mere unavoidable accidental escape of fire from its engine. St. Louis & S. F. Ry. Co. v. Hoover, 3 Kan. App. 577 (43 Pac. Rep. 854); Home Ins. Co. v. Atchison, T. & S. F.. Ry. Co., 4 Kan. App. 60 (46 Pac. Rep. 179) A railroad company is not liable for the destruction of property by fire escaping from its engines unless such injury resulted from its negligence; and the mere starting of a fire by a passing locomotive raises no legal presumption that it was the result of negligence. Lake Erie & W. Ry. Co. v. Grossart, 14 Ind. App. 244 (42 N. E. Rep. 818). Simply showing that a fire started on the right of way of a railroad does not show negligence on its part. Taylor v. Pennsylvania Schuylkill Val. R. Co., 174 Pa. 171 (34 Atl. Rep. 457). A railroad company cannot be held liable for damages occasioned by a fire which is not shown to have been started by it, where the plaintiff neither accounts

for the origin of the fire nor shows that his damages resulted from the negligence of the company. Osborne v. Chicago & W. M. Ry. Co., 111 Mich. 15 (69 N. W. Rep. 86). Where a fire originated on account of the negligence of a railroad company it cannot escape liability on account thereof by showing that it exercised ordinary care to quench the fire. Austin v. Chicago, M. & St. P. Ry. Co., 93 Wis. 496 (67 N. W. Rep. 1129). It is the duty of a railroad company to employ the best known appliances for preventing the escape of fire and to keep its right of way reasonably free from combustible matter, Watt v. Nevada Cent. R. Co., 23 Nev. 154 (44 Pac. Rep. 423; 62 Am. St. Rep. 772) ; and where a railroad company negligently permitted inflammable matter to accumulate on its right of way on account of which property was damaged by a fire, it cannot escape liability by showing the highest degree of care in constructing and operating its engines. New York, P. & N. R. Co. v. Thomas, 92 Va. 606 (24 S. E. Rep. 264); Louisville & N. R. Co. v. Miller, 109 Ala. 500 (19 So. Rep. 989). Where a fire negligently started by a railroad company was subdued except in some hay stacks from which it was carried on the next day by a moderate wind some 80 or 90 feet to prairie grass from which it spread, causing injury to property some three or four miles distant, it was held that the company's negligence was the proximate cause of such injury. Union Pac. Ry. Co. v. McCollum, 2 Kan. App. 319 (43 Pac. Rep. 97). Railroads using appliances in common use which have been used for a long time and found sufficient to protect their own and other property from danger, should be protected against the charge of negligence because of their use. If such appliances are used, the burden of proof is on the plaintiff to show they were defective, or improperly and negligently used. Gumbel v. Illinois Cent. R. Co., 48 La. 1180 (20 So. Rep. 703). Wis. Laws, 1893, ch. 202, construed and applied-notice to railroad company of claim for damages by fire-manner of service. Atkinson v. Chicago & N. W. Ry. Co., 93 Wis. 362 (67 N. W. Rep. 703); Donovan v. Chicago & N. W. Ry. Co., 93 Wis. 373 (67 N. W. Rep. 721). Particular evidence held sufficient to show that a fire originated from the sparks of a passing railroad engine. Watt v. Nevada Cent. Ry. Co., 23 Nev. 154 (44 Pac. Rep. 423; 62 Am. St.

Rep. 772); Missouri Pac. Ry. Co. v. Chamberlain, 4 Kan. App. 232 (45 Pac. Rep. 967); St. Louis & S. F. Ry. Co. v. Stevens, 3 Kan. App. 176 (43 Pac. Rep. 434). Particular facts held insufficient to show that a fire starting in a building originated by sparks from a passing railroad engine. Finkelston v. Chicago, M. & St. P. Ry. Co., 94 Wis. 270 (68 N. W. Rep. 1005). Particular fact cases in which a railroad company was held to be negligent in setting out fires on its right of way and permitting them to escape therefrom. Tien v. Louisville, N. A. & C. R. Co., 15 Ind. App. 304 (44 N. E. Rep. 45); Baltimore & O. R. Co. v. Countryman, 16 Ind. App. 139 (44 N. E. Rep. 265).

Sec. 813. Action for injuries by fire-Measure of damages. Where an action is for the destruction of personal property the measure of damages is the fair reasonable value of the property at the time and place of the destruction; if it is for injury to land, the measure of damages is the difference in the fair market value just before and just after the fire. Atchison, T. & S. F. Ry. Co. v. Briggs, 2 Kan. App. 154 (43 Pac. Rep. 289). For application of this rule to real estate where the injury was the destruction of an orchard see St. Louis & S. F. Ry. Co. v. Hoover, 3 Kan. App. 577 (43 Pac. Rep. 854). Where the action is for the destruction of trees planted and cultivated on land as ornamental trees it is not improper to consider evidence of their value to the land as such. Kansas City & O. R. Co. v. Rogers, 48 Neb. 653 (67 N. W. Rep. 602), distinguishing Railroad Co. v. Crum, 30 Neb. 70 (46 N. W. Rep. 217). The measure of damages for the destruction of a building by fire is the reasonable cost of restoring it to its former condition. Anderson v. Miller, 96 Tenn. 35 (33 S. W. Rep. 615; 54 Am. St. Rep. 812; 31 L. R. A. 604). The measure of damages for the destruction of hay by fire is its value at the nearest market, less the cost of transportation to that place. Watt v. Nevada Cent. R. Co., 23 Nev. 154 (44 Pac. Rep. 423; 46 Pac. Rep. 52; 62 Am. St. Rep. 772). It is proper to allow interest on the value of property from the time it is destroyed. Union Pac. Ry. Co. v. Ray, 46 Neb. 750 (65 N. W. Rep. 773). In Kansas, one who recovers damages from a railroad company on account of

fire is entitled to recover a reasonable attorney's fee for the prosecution of his action, St. Louis & S. F. Ry. Co. v. Hoover, 3 Kan. App. 577 (43 Pac. Rep. 854); but it is error to include in the damages an attorney's fee where no evidence has been introduced on that subject. Atchison, T. & S. F. Ry. Co. v. Scafford, 2 Kan. App. 73 (43 Pac. Rep. 308). The verdict of a jury will not be set aside on the ground that the damages assessed were excessive unless they are so excessive as to create the belief that the jury were misled either by passion, prejudice or ignorance. Donovan v. Chicago & N. W. Ry. Co., 93 Wis. 373 (67 N. W. Rep. 721).

Sec. 814. Action for injuries by fire-ComplaintParties. A complaint charging generally that the defendant railroad company negligently permitted its engine to become out of repair and negligently allowed fire to escape therefrom and destroy the plaintiff's property was held sufficient, Lake Erie & Western Ry. Co. v. Grossart, 14 Ind. App. 244 (42 N. E. Rep. 818); and so was a complaint which charged that the company negligently permitted fire to spread to contiguous lands and from thence to plaintiff's land. Chicago & G. T. Ry. Co. v. Burden, 14 Ind. App. 512 (43 N. E. Rep. 155). Particular complaint held sufficient. Slocum v. Great Northern Ry. Co., 63 Minn. 233 (65 N. W. Rep. 443). North Carolina Code, §§ 52, 53, construed and applied-sufficiency of complaint. Roberson v. Morgan, 118 N. C. 991 (24 S. E. Rep. 667). As to amendment of complaint, see O'Connor v. Chicago & N. W. Ry. Co., 92 Wis. 612 (66 N. W. Rep. 795). A tenant of wild prairie land does not, by granting to another permission to enclose and pasture a portion of the land, make the latter his cotenant so as to be a necessary party plaintiff with him in an action against a railroad for damage to the pasture by fire, where, when the damage was done, the party to whom such permission was given was not in actual possession of the land. Gilland v. Union Pac. Ry. Co., (43 Pac. Rep. 508).

Sec. 815.

Wyo.

Actions for injuries by fire-EvidenceInstructions. Where a plaintiff alleges generally in his complaint that he has been damaged by fire occasioned by the

negligence of a defendant railroad company, proof may be given of any form of negligence which contributed to the injury, Louisville & N. R. Co. v. Miller, 109 Ala. 500 (19 So. Rep. 989); but when the complaint specifically alleges the negligent acts on account of which the fire originated, a recovery cannot be had upon proof of negligence in other matters. Union Pac. Ry. Co. v. Buck, 3 Kan. App. 671 (44 Pac. Rep. 904). The negligence of a railroad company, in an action for damages on account of a fire, may be shown by circumstantial evidence. Donovan v. Chicago & N. W. Ry. Co., 93 Wis 373 (67 N. W. Rep. 721); Brown v. Benson, 98 Ga. 372 (25 S. E. Rep. 455). Statements made by a section master of a railroad company before the extinguishment of a fire, although made more than a day after it began burning, were held admissible as a part of the res gestae. Yazoo & M. V. R. Co. v. Jones, 73 Miss. 229 (19 So. Rep. 91). In determining the damages, the opinions of witnesses acquainted with the land as to its value before and after the fire are admissible. Chicago & G. T. Ry. Co. v. Burden, 14 Ind. App. 512 (43 N. E. Rep. 155). What the owner would take for his property which has been destroyed or what it would cost to replace it cannot be shown as proof of its value. Watt v. Nevada Cent. R. Co., 23 Nev. 154 (44 Pac. Rep. 423; 62 Am. St. Rep. 772). Offers received for land are not competent evidence on an issue involving its value. Atkinson v. Chicago & N. W. Co., 93 Wis. 362 (67 N. W. Rep. 703). In determining the amount of hay which was in stacks destroyed by a fire, an estimate based upon the survey of the number of acres in the fields furnishing the hay and a fair average yield per acre is more reliable than the uncertain estimates of the owner and his neighbors, of the number of loads stacked and the height of the stacks. Watt v. Nevada Cent. R. Co., 23 Nev. 154 (44 Pac. Rep. 423; 62 Am. St. Rep. 772). Particular evidence held to be such that the question of negligence should go to the jury. Van Steuben v. Central R. Co., 178 Pa. 367 (35 Atl. Rep. 992; 34 L. R. A. 577); Slocum v. Great Northern Ry., Co., 63 Minn. 233 (65 N. W. Rep. 443); Union Pac. Ry. Co. v. Ray, 46 Neb. 750 (65 N. W. Rep. 773); St. Louis & S. F. Ry. Co. v. Stevens, 3 Kan. App. 176 (43 Pac. Rep. 434); Brown v. Benson,