November 11, 1910. The opinion of the Court was delivered by
When there is testimony tending to show damage to property caused by fire communicated by a railroad engine, it is error to grant nonsuit on the ground that there is no evidence of negligence; in such cases, a prima facie presumption of negligence arises which casts the burden on the railroad corporation to show that its engine was constructed, equipped, and managed with due care. Hutto v. Ry.,
A complaint which alleges that such fire was negligently set out may be amended during trial, after the evidence has been taken, by striking out the allegation of negligence so as to make the action one under Section 2135 of the Code of 1902, which makes every railroad corporation liable for damage caused by fire communicated by its engine (except in the cases specified) without regard to the question of negligence. Brown v. Ry.,
Reversed. *Page 241