Reversing.

The appellants H.H. Bryant and Bertha Bryant sued the appelles J.C. Ellis, Drury Smithers, and G.L. Brantley for $300, which plaintiffs allege was the value of certain property of theirs destroyed by fire negligently lighted by the defendants. At the close of the evidence for the plaintiffs, the court directed the jury to return a verdict for the defendants, and, from the judgment entered on that verdict, the plaintiffs have entered a motion for an appeal.

The defendants were contractors engaged in the grading of a road in Morgan county known as state project No. 32, and in that work they were using a steam shovel. On April 21, 1924, they were operating this shovel in excavating a cut on the farm of Mrs. Florence Ferguson. On that day a fire started in some broom sedge, grass, and other combustible material on Mrs. Ferguson's farm. This fire spread in that material until it reached the farm of the plaintiffs and burned some fencing and timber belonging to plaintiffs, for which they sought in this suit to recover. Eleven witnesses testified for the plaintiffs, and they make various statements about how near to the shovel this fire originated, about the amount of damage the fire did to the property of the plaintiffs, and about the distance they had observed burning coals or cinders thrown by this steam shovel. Some of these witnesses gave these distances by comparison to the distance to certain objects in and near the courtroom, which, of course, is meaningless to us, but others estimated these distances in feet, and, summing up and averaging the statements made by these witnesses, it appears that at the conclusion of the plaintiffs' evidence they had established that this fire originated about 31 feet from the shovel; that it destroyed property of the plaintiffs worth $575; and that this steam shovel would throw burning coals and cinders 92 feet. *Page 274

We cannot understand why the court directed a verdict for the defendants, but gather from the brief filed in their behalf that this peremptory instruction was given because the plaintiffs failed to show that the steam shovel was not equipped with an approved spark arrester, that it was not in good order, or that it was being negligently operated. There are some things in the brief that indicate that defendants were contending that sections 782 and 793, Kentucky Statutes, created the liability for communicating fire, and that these sections only applied to railroads. If that was the view taken by the court, and the peremptory instruction was given for that reason, it cannot be approved. Sections 782 and 793 did not create the liability for communicating fire. That liability already existed at common law. Indeed, one of our fundamental maxims is, "sic utere tuo ut alienum non lædas." Section 782 was passed for the benefit of the railroads, to provide a degree of care, the observance of which would relieve them from responsibility for the communication of fire, and applies to railroad companies only.

Of course, the defendants had a lawful right, in the grading of this highway, to use a steam shovel, if they saw fit to do so; but, when they did so, it was incumbent on them to use ordinary care to avoid throwing sparks therefrom and setting fire to adjoining property. Fire is a dangerous agency, and the ordinary man is quite careful in the use of it. Parties using machinery operated by steam must use fire to generate the steam; but in the use of such machinery they must use care commensurate with the danger to avoid communicating the fire to adjoining property. In determining the degree of care required in such cases, regard must be had for the character of the season, the weather, the prevailing winds, and the nature of the material near which they are working. Thus ordinary care in a plowed field during a downpour of rain would be negligence during a severe drought and in the neighborhood of dry fodder, stubble, grass, or other tinder. This care is measured by that degree of caution which a man of ordinary prudence would exercise under the circumstances. A very interesting case dealing with the communication of fire by a threshing engine is that of Martin et al. v. McCrary et al., reported in 115 Tenn. 316,89 S.W. 324, 1 L.R.A. (N.S.) 530. Other cases of interest and instruction are *Page 275 Gillingham v. Christen, 55 Ill. App. 17; McClelland v. Scroggin, 48 Neb. 141, 66 N.W. 1123; Collins v. Groseclose,40 Ind. 414; Garrison v. Grayvill, 52 Mo. App. 580; Teall v. Barton, 40 Barb. 137; Dennis v. Harris, 64 Hun, 637, 19 N.Y. S. 524; Holman v. Boston Land Security Co., 20 Colo. 7,36 P. 797; Quint v. Dimond, 147 Cal. 707, 82 P. 310.

The burden was on the plaintiffs to establish by evidence that this fire was set by a spark thrown from this steam shovel. That does not mean that the plaintiffs have not made out a case unless they produce a witness who is able to testify that he saw the spark thrown from the smokestack of the shovel, saw it come over, light upon this stubble and ignite it. Such evidence would be almost impossible to procure.

The evidence the plaintiffs did offer showed that this fire started about 30 feet from this shovel. There was evidence that this shovel had started other fires, perhaps not on this very day, but a day or so before this. Some witnesses testified that they had come over to where the shovel was at work in order to see it operate, and, while there, sparks were thrown from it that burned their hats, their clothing, and some fell on their hands and burned them, and when the plaintiffs had produced that evidence, that was sufficient to take the case to the jury, and the jury might have inferred from that that this fire was started by sparks thrown from the smokestack of this steam shovel. When the plaintiffs produced evidence from which it might reasonably be inferred that this fire was lighted by sparks thrown from the defendants' steam shovel, the burden then shifted to the defendants to overcome such prima facie case, or to establish that this fire was not caused by their negligence. These things were matters of defense, and were peculiarly within the knowledge of the defendants, and they must either establish by evidence that they used ordinary care or else respond in damages. See Lawton v. Giles, 90 N.C. 374. See, also, Ledford v. Hubbard, 219 Ky. 9, 292 S.W. 345. In the case of C., N. O. T. P. R. v. Falconer, 30 Ky. Law Rep. 152, 97 S.W. 727, we said:

"When it has been proven by the property owner, by direct or circumstantial evidence, that the fire was caused by sparks escaping from a railroad locomotive, we think it is then incumbent on the railroad *Page 276 company to show to the satisfaction of the jury in any event that its locomotives were equipped as the statute requires. The means of proving such fact is entirely within the power of the railroad company to preserve and produce. If it fails to produce satisfactory evidence that the statutory requirement has been complied with as to the engine or engines causing the fire, then the verdict ought to go against it."

In the case of I. C. R. Co. v. Barret, 23 Ky. Law Rep. 1755, 66 S.W. 9, where the railroad company admitted the fire was caused by sparks escaping from its engine, but pleaded that the engine was equipped as the law required, this court held the burden of proof was on the railroad company. It may be that the court directed this verdict for the defendants because this fire was not started upon the land of the plaintiffs, but upon the land of Mrs. Ferguson, and thence communicated to the plaintiffs' land, but that does not excuse the defendants.

"Where the communication of fire to the property of another is due to negligence in allowing it to start or escape, and the burning of such property carries the fire to the property of another and burning of the latter causes the burning of still other property and so on, the party first guilty of negligence is liable for all damage done, in the absence of some intervening cause which spreads the fire or the negligence of some third person in failing to stop its progress, and the remoteness of the property burned from the place where the fire had its origin has nothing to do with the liability of the negligent party." Hoyt v. Jeffers, 30 Mich. 181; Adams v. Young, 44 Ohio St. 80, 4 N.E. 599, 58 Am. Rep. 789.

The defendants cannot be excused in this case because of the presence of stubble, dry grass, and other inflammable material which fed this fire, or because of the prevailing wind which fanned the fire, and thus carried it to the property of the plaintiffs. They knew, or should have known, of the existence of this combustible material, and should have known of the wind and should have observed care proportionate to the danger. Whether negligence on the part of the defendants in first allowing the fire to escape is the proximate cause of all the resulting damage or not is a question of fact for the jury to determine. Adams v. Young, supra. *Page 277

In Tyler v. Ricamore, 87 Va. 466, 12 S.E. 799, it was held that, where one negligently started a fire, he could not be excused from the results by the springing up of a high and unusual wind. The same is true of the case of Hays v. Miller,70 N.Y. 112; Hewey v. Nourse, 54 Me. 256; Lillibridge v. McCann, 117 Mich. 84, 75 N.W. 288, 41 L.R.A. 381, 72 Am. St. Rep. 553. This last case is a very interesting case, and many authorities are cited.

The plaintiffs' motion for an appeal is meritorious. It is now sustained; the appeal is granted. The judgment is reversed.