Jacksonville, Tampa & Key West Railway Co. v. Peninsular Land, Transportation & Manufacturing Co., 27 Fla. 1

27 Fla. 1 | Fla. | 1891

Raney, C. J.:

This is an appeal from a judgment recovered against appellant by the appellees in April, 1890, for the sum of 852,909.03, and costs, in an action of trespass.

The amended declaration states : That the defendant, who is a corporation under the laws of Florida, on April 9th, 1888, owned, controlled, managed and operated a railroad from the town of Sanford, in Orange county, to Tavares, in Lake county, in this State, known as the Sanford & Lake Eustis Division of the Jacksonville, Tampa & Key West Railway Company, and that at the same time, and at the time of the construction of the said Sanford & Lake Eustis road, the plaintiff, a body corporate under the laws of this State, was the owner of certain buildings in Tavares, to-wit: The Peninsular Hotel, of the value of $40,000 ; a store building on Tavares Boulevard, at the corner of Hew Hampshire Avenue, of the value of $6,000, and another store building, on the same boulevard, and near the same avenue, of the value of $2,000 ; one livery stable, valued at $1,500; one cottage on East Ruby street, valued at $600 ; another at the corner of the same street and Joanna avenue, valued at $500 ; two other cottages on the same avenue, valued respectively at $500 and $400, and one on Texas Avenue, valued at $400 ; and that the plaintiff was at the time "stated the owner of the following personal property, viz : The furniture and entire outfit of the hotel, of the value of $16,000; the counters, shelves, cases, &c., in the first - named store, of the value of $1,000; chairs, tables, maps, desks, life-preservers and harness, of the value of $1,000 ; one outfit of printing material, of the value of $1,200 ; the buildings, tenements and personal property, aggregating in value the sum of $72,100. That the railroad was constructed along Tavares Boulevard within 150 feet of plaintiff’s stores and hotel, and within 1,000 feet of all the other above-described property, and that defendant, although well aware of the inflammable nature of the material of which the buildings, tenements and j>ersonal property was composed, and of their liability to take fire, negligently and carelessly permitted their locomotive engines, operated and controlled by their agents, servants and employees, to be run along the said boulevard without taking necessary and proper precaution to prevent sparks of fire escaping from the smoke-stack of the locomotive engines, thereby endangering the property of the plaintiff to destruction by fire, and'that on the morning of the day aforesaid the defendant! s train of cars, drawn by one of its locomotive engines, and controlled, managed and operated by one of its employees, agents and servants, started from the said boulevard for Sanford, the said locomotive not having a spark-arrester therein (if there was any spark-arrester at all) so arranged as to prevent the escape of sparks from the smoke-stack, and the defendant having negligently, recklessly and carelessly omitted and failed to exercise due care and precaution to prevent the escape of sparks of fire from the smokestack of said locomotive engine, and not exercising due care and diligence in managing, controlling and operating the locomotive, it, the said locomotive, there being at the time of leaving said boulevard, and before, a high wind blowing, threw out from its smoke-stack a considerable number of sparks and blazing fragments of wood, which then and there set fire to a certain -wooden sidewalk on said boulevard, and the fire wus communicated to the adjacent buildings, including the plaintiff’s said buildings, tenements and personal property, and plaintiffs properties aforesaid were, all and each of them, totally destroyed by said fire, the plaintiff being without fault, and unable to arrest or prevent the spread of the fire, which fire was caused by the gross negligence of defendant in not exercising due care and precaution in preventing the escape of the sparks from the locomotive, the plaintiff claiming $75,-000 damages.

A demurrer was filed to this declaration, but the general assignment of errors that the action of tlie court overruling it was erroneous, having -been submitted “without argument,” we may treat the assignment as abandoned. We may .remark, however, that we perceive no defect in the declaration.

The demurrer having been overruled, the defendant filed five pleas :

1st. Not guilty.

2d. That it did not own, manage, control or operate a certain railroad, or any railroad, running from the said town óf Sanford, to that of Tavares, and known as the Sanford & Lake Eustis Division of the Jacksonville, Tampa & Key West Railway, and was not the owner, manager, controller, or operator of any such railroad on the 9th day of April, 1888, or at any time prior or subsequent to this date.

3d. The plaintiff is not a corporation as alleged.

4th. That the plaintiff by its own acts so contributed to its own loss- and injury that it has no right of action.

5th. That whatever loss or damage the plaintiff may have sustained, as set forth in the declaration, was by its own fault and negligence.

Issue was joined on these pleas, but the third plea has been abandoned in this court.

The questions to be considered next arise under the issue made by the second plea.

The plaintiff delivered to the defendant’s attorney on July 30th, 1889, interrogatories for discovery, addressed “to the superintendent!’ of the defendant company, “an officer of said body corporate,” and other interrogatories addressed to Charles C. Deming, secretary of the defendant company, “an officer of said body corporate,” such interrogatories being accompanied by a notice, to such attorney, requiring that the interrogatories should be answered by affidavit within ten days. Answers to the former interrogatories were made by one J. A. Darned, (he swearing that he is superintendent of the company), on the 31st day of the following month, and to the latter by Deming, the secretary, two days before, and on the 12th of September, other interrogatories addressed to the same secretary were served, and he answered them on the first day of October, and afterwards on a subsequent day in the same month filed an amendatory answer. Coteinporaneously with the last mentioned'interrogatories, there were served others addressed to “the superintendent” of the defendant company, “an officer of said body corporate,” which were answered October 4th, by one C. O. Parker, who states, among other things, in his affidavit, that he is the assistant general manager of the defendant company. On the 2oth of the last named month the plaintiff by notice addressed to the defendant company, and to J. -A. Darned, superintendent thereof, required .them to answer accompanying interrogatories addressed to J. A. Darned, such superintendent, and he answered them early in the succeeding month.

Upon the answers, with the interrogatories, being offered in evidence, they were objected to, but the court overruled the objection and* permitted them to be read, and this ruling is assigned as error.

The interrogatories were filed under certain provisions of “an act to amend the pleadings and practice of the courts of this state,” approved February 8th, 1861, secs. 18, 19, 20, 21, McClellan’s Digest, pp. 516, 517. The 18th and 19th of these sections are as follows:

“18. I-n all causes in any of the courts of the state the plaintiff may, with the declaration, and the defendant'may, with the plea-, or either of them may, at any other time, deliver to the opposite party or his attorney interrogatories in writing upon any matter as to which discovery may be sought, and require such party, or in case of a body corporate any of the officers of such body corporate, within ten days to answer the questions in waiting by affidavit, to be sworn and filed in the,ordinary way; and any party or officer omitting, without just cause, sufficiently to answer all questions as to which a discovery may be sought within the above time, or such extended time as the court or a judge may allow, shall be deemed to have committed a contempt of court, and shall be liable to be proceeded against accordingly.”

“19. In case of omission, without just cause, to answer sufficiently such written interrogatories, it shall be lawful for the court or judge, at their or his discretion, to direct an oral examination of the interrogated party, as to suc-li points as they or he may direct, either before the court or judge or clerk, and the court or judge may, by such rule or order, or any subsequent rule or order, command the attendance of such party or parties before the person appointed to take such examination for the purpose of being orally examined as aforesaid, or the production of any writings or other documents to be mentioned in such rule or order, and may impose therein such terms as to such examination and the costs of the application, and of the proceedings thereon and otherwise, as to such court or judge shall seem just.”

The 20th section is as to the return of depositions taken under the preceding section, and authorizes office copies to be given to the opposite party. The other section is as to reports by the examiner and costs.

It is contended that these sections have been repealed by the act of February 4th, 1874, entitled “an act in relation to’testimony in civil actions,” Chapter 1983 of the statutes, sec. 24, p. 518, McClellan’s Digest, which statute enacts that no person offered as a witness in any court, or before any officer acting judicially, shall be excluded by reason of his interest in the event of the action or proceeding, or because he .is-a party thereto; providing, however, the parties to, and those interesting in the event of an action, their assignees and those under whom such parties, or interested persons claim, shall not testify as to any transaction or communication between such a witness and a person then deceased or lunatic, against the repre sentative or assignee of such deceased person, or the assignee or committee of such insane person, unless such representative, assignee or committee shall be examined in his own behalf as to such transaction or communication, or unless the testimony of such deceased person or who may have become lunatic, shall be given in evidence.

The purpose of the act of 1861 was to enable parties to actions at law to obtain “discovery” without having to resort to the expensive and tardy procedure by bill in equity for srich purpose. In Wilson vs. Webber, 2 Gray, 560, it is said of a substantially similar statute : The main purpose of these provisions was to substitute in place of the tedious, expensive and complex process of a bill of discovery on the equity side of the court, an easy, cheap and simple ¡node of interrogating an adverse party, as incident to and part of the proceedings in the cause in which the discovery was sought. It was not intended to make the parties to a cause witnesses, who might at the pleasure of the party interrogating, be made to testify respecting the whole case, but only to give a limited right to obtain evidence from an adverse party in analogy to the well settled rules regulating bills of discovery in the court of chancery in England. See also Bayley vs. Griffiths, 1 H. & Co., 429. In Williams vs. Cheney, 3 Gray, 215, 217, 220, where the defendants proposed to read in evidence the answers of the plaintiff to interrogatories filed by the defendants to another suit pending in the same court, but in which the issues were not the same as those in that in which it was proposed to read them, it was held that such answers were competent evidence so far as they contained admissions by him of facts material and relevant to the points in issue in the latter action; and it is said of the statute, that its provisions secure to parties the right to make complete statements of all facts in relation to which they may be interrogated in any s’uit, and guard them against being compelled to make partial and garbled disclosures in answer to artfully contrived questions. There can, therefore, be no danger or hardship in allowing such statements to be used in evidence in like manner as other admissions of a party to a suit, fairly made, are ordinarily admitted against them. '

Whether or not this act does away with the equity jurisdiction or practice for obtaining discovery in aid of actions at law, we need not decide, as no such proceeding in equity is before us. The authorities cited in the books against the idea of an abrogation of the equitable jurisdiction or practice are: Cannon vs. McNab, 48 Ala., 99; Continental Life Ins. Co. vs. Webb, 54 Ala., 688; Buckner vs. Ferguson, 44 Miss., 677; Millsaps vs. Pfeiffer, Ibid, 805; Kearney vs. Jeffries, 48 Ibid, 343; Shotwell vs. Smith, 20 N. J., (Eq.) 79; Hoppock vs. United New Jersey R. R., &c., Co., 27 Ibid, 286, and French vs. First National Bank, 7 Benedict, (U. S. Dist. Ct.) 488; while those relied on as against it are, Rindskoph vs. Platto, 29 Fed. Rep., 130; Riopelle vs. Doellner, 26 Mich., 102; Heath vs. Erie Railway Co., 9 Blatchf., 316, and Brown vs. Swann, 10 Peters, 497. Assuming even that the statute last mentioned has superseded the right to use the equity practice, we are still-satisfied that the act of 1874, Chapter 1983, supra, has not repealed that of 1861, and for the reason that the sole purpose of discovery under the statute, nor of its prototype in equity, is not merely to obtain evidence for use upon the actual trial of the issues at law, but also to aid a party in preparing for trial. Baker vs. Carpenter, 127 Mass., 226; Blossom vs. Ludington, 32 Wis., 212; Woolley vs. North London Railway Co., Law Reports, 4 C. P. Cases, 602; Atkinson vs. Fosbroke, Law Reports, 1 Q. B. Cases; 628; Wych vs. Meal, 3 Peere Williams, 310; Vermilyea vs. Fulton Bank, 1 Paige, 37; Wright vs. Dame, 1 Metcalf, 237; Moodalay vs. Morton, 1 Bro. Ch., 469.

Though the general rule in equity is that a person who has no interest in the subject-matter of the suit, or is merely a witness, cannot be made a party defendant to a bill either for relief or for purposes of discovery, there is an exception to this rule in the case of a proceeding against a corporation, for the reason that a corporation answers under its seal, and not under oath; and a full knowledge of facts might not be obtained from it. 2 Story Eq. Jur., sec. 150, and notes; Garr vs. Bright, 1 Barb., (Ch.) 157; Fenton vs. Hughes, 7 Vesey, Jr., 287; Lindsley vs. James, 3 Cold., 477; Smith vs. St. Louis Mutual Life Ins. Co. 2 Tenn., Ch., 599; Fulton Bank vs. New York & Sharon Canal Co., 1 Paige, 312. Hence grew up the rule of permitting the officers of a corporation to be made co-defendants for the pxirposes of discovery, to enable complainants to obtain full knowledge of all facts material to their action or defence. The answer of the officer could, however, not be used as evidence against the corporation, but it served only to enable the plaintiff to understand his rights, and direct his suit, actiofi or defence; and the plaintiff could afterwards examine the officer or servant as a witness, when the corporation could have the benefit of a cross-examination or disprove the matters contained in his answer. Wych vs. Meal, 3 Peere Williams, 312; Vermilyea vs. Fulton Bank, 1 Paige, 37; Many vs. Beekman Iron Co., 9 Ibid, 188.

The reason given for this inadmissibility of the answer of the officer as evidence against the corporation is the rule that the answer of one defendant in chancery cannot be used, or is not evidence against his co-defendant, the admissions of the one do not bind the other.

Though we think the purpose of this statute was not to authorize either party to examine the opposite party or officer of the opposing corporation as to the whole case, or as to such opponent’s case, but simply in support of the case or defence of the party propounding the interrogatories upon the principles governing and limiting bills of discovery in chancery. Zeigler vs. Scott, 16 Ga., 389; Thornton vs. Atkins, 19 Ga., 464; Godwin vs. Wood, 5 Ala., 120; Pritchett vs. Munroe, 22 Ala., 501. We do not think the same rule obtains as to the use of the answers of an officer obtained under the statute'. The officer answers really for the corporation, the same as any other defendant answers for himself. The interrogatories are served on the attorney of the corporation, or if not on him, they must be served on such officer as makes it in law a legal service on the corporation. If there is-any reason or “just cause ” why the person called upon as an officer to answer should not answer the interrogatories, the corporation is in position to protect itself. Tlie answer of a corporation under its seal could not, under the chancery practice, be excepted to on the ground of its insufficiency-as a discovery. Smith vs. St. Louis M. L. Ins. Co., 2 Tenn., 599. The purpose of the statute was to obtain the same discovery of a corporation as would have been obtainable in equity before in aid of a suit at law if these bodies had been required to answer under the oaths of their officers instead of under seal. If an officer answers, but not “sufficiently,” the' statute provides the means of compelling a sufficient answer. Corporations are no more-at a.disadvantage under this rule than they are from their ordinary answers in chancery, .being prepared under the direction of their officers. The loyalty of officers on this line cannot be questioned so long as they tell the whole truth.

The introduction of the answers of the officers named above were objected to' on four grounds : 1st, it was not the proper way of bringing into court the testimony of an absent witness ; 2d, the defendant had no authority of cross-examination ; 3d, that Parker is not shown to be a part of the defendant company, and 4th, because if a mere employee of the company, it is not bound by its answers in these ex parte depositions.

The first and second of these objections are fully answered by what has been said above. A corporation has no more right to urge the second objection than any other defendant; it acts through its officers, and not otherwise. As to the third and fourth objections it is only necessary to say that it- must be presumed, in the absence of any showing to the contrary by the company, that Parker answered by and with its consent and as its officer. There is no pretense that the interrogatories were not duly served, or that any unfair advantage or irregularity or practice was attempted against the defendant. It is true the interrogatories were not addressed to him; still the only justifiable assumption is that he was put forward by the company to answer those addressed to another, and absent officer in -whose place he was acting. If he or any of these officers were of such a grade or character that they should not have answered, tlie objection should have been supported by some affirmative showing to that effect. Without saying more, an objection that any officer is not such one as should have answered, comes very inopportunely when the case is on trial. It is reasonable to require that it should be made before answering, and fair practice demands that the party propounding the interrogatories should not be liable to be ensnared by an answer filed as a compliance with the statute and an exception of this kind made upon the trial, which has been entered upon in reliance upon »snch answers to prove a part of his case.

Regarding the answers as evidence, and considering them in connection with other testimony bearing upon the same point, it is clear that the defendant company controlled, managed and operated the Sanford and Lake Eustis road at the time of the fire in question. It is not necessary to set forth all the testimony on this point. To do so in this, or in several other questions of fact, would swell the opinion, -which necessarily will be very long, beyond a tolerable measure.

It is asserted by appellant’s counsel, however, that barring the answers to the interrogatories for discovery propounded by plaintiff to Earned, Leming and Parker, there is no testimony to sustain the allegations of the declaration, upon which the plea takes issue. A concise statement of the other evidence bearing on the point will show this contention to be untenable, M. R. Moran, who was the general superintendent of the defendant company from the year 1887 to. March 80th, 1889, says that the Sanford & Lake Eustis Railroad, from Tavares to Sanford, was operated and controlled by the defendant during those years, and on April 9th, 1888, the day of the fire, to the best of his knowledge and belief; that the defendant company was not the owner of the road, and that the receipts were taken by the Sanford & Lake Eustis Company, and the expenses of the operation of the road were paid out of the moneys received from it so far as they went; that the engines, cars and rolling stock run upon the road on the day of the fire, and prior thereto, were not in the name of the Sanford & Lake Eustis Company, and whether they were leased by said company belongs more particularly to the accounting department, and not to his, and he has no definite knowledge as to the matter.

W. B. Tucker, who was agent of the defendant company at Tavares in 1888, says that the line of the road ran from Tavares to Jacksonville; that the portion of the line of which he was agent at Tavares was designated or set down on the cards as the Sanford & Lake Eustis Division of the Jacksonville, Tampa & Key West Railway; that the forms, in so far as the business of his office was conducted, were all headed Jacksonville, Tampa & Key West Railway Company, and he issued freight receipts and bills in the same name; that the printed through passenger tickets were headed “Jacksonville, Tampa and Key West Railway,” and there was a coupon good from Tavares to Sanford printed: “S. & L. E. Division;” that Jacksonville, Tampa and Key West trains were run on the division, that is, their engines were so labelled, and that an engine marked “J. T. & K. W.” carried the train out on the morning of the fire; that he rendered his accounts to the auditor of the Jacksonville, Tampa and Key West Railway, and looked to that company for compensation for his services, and received compensation from the paymaster or cashier of that railway, and in receiving freights from other roads connecting with the line at Tavares, he receipted for them in the name of the defendant company, and in delivering freights to such lines, delivered them in the name of the same company; that the business was thus transacted during the entire time of his agency at Tavares. On cross-examination he says: That during the same time he was acting superintendent of the T. A. & G., of which Major Alexander St. Clair-Abrams was pres i-dent; and on being asked if he knew that the cashier of the J. T. & K. W., was also cashier of the S. & L. E., replied: He paid me off. I used to send my remittances to him from that division, and further said that the did not know that the cashier of the J. T. & K. W., was cashier of .the S. & L. E., or how the pay rolls he signed were headed, but that he “just signed” his name. J. T. Sullivan, a witness for plaintiff, says he was a locomotive engineer on the defendant road on the morning of the fire, and ran the train that morning from Tavares, to Sanford, having come into the former place with a mixed train. E. W. Dunn, another witness for the plaintiff, says he was a conduc-. tor for the defendant company on the morning of the fire, and that his run that day was from Tavares to Sanford, the making of which he describes. The testimony of Earle, the foreman boilermaker, shows that the locomotive which pulled the train that morning was one of the defendant company’s locomotives.

The testimony set out above shows that the defendant company was actually operating and controlling the road. It was holding itself out to the public as the operator and controller of it. The road was managed and operated by its officers and employees, in its name, and not in the name of the Sanford and Lake Eustis or that of any other company. The public is not required to look further than' this. The statement of Moran that the ! ‘receipts were taken by the Sanford and Lake Eustis Company, and the expenses of the operation of the road were paid out of the money received from it so far as they went,” is not inconsistent with the actual and ostensible management of the road by the defendant company, to which he testifies. He also fails so state who paid or was to pay the excess of the expenses over what such receipts “went” to pay. No secret agreement as to the application of the earnings to the expenses will protect or relieve the company actually operating the road or train from liability to those suffering injuries by its negligence.

If we look beyond the testimony set out above .to that contained in the answers to interrogataries, we And the secretary of the defendant company testifying that it was operating the road “under and in accordance with a memorandum of agreement between the two companies,” providing' that the defendant company would operate the road until May 1st, 1888, and pay the difference, if any, between the expenses and receipts of the Sanford and Lake Eustis Company, and “supply for the use of the second party,” Sanford and Lake Eustis Company, rolling stock at stated prices for the use of the same, and that two and a half per cent, of the general administration expenses of the defendant company, including its steamboat service, should be charged as part of the operating expenses of the Sanford and Lake Eustis Company; that interest shall be reckoned at eight per cent on monthly balances, and the accounts ‘ ‘now outstanding between the two companies shall be computed and settled upon the foregoing basis,” the agreement not to cover any advances made, or expenses incurred, by defendant company on construction account.

The agreement Avas made in 1887. The effect of its terms is that the defendant company should in its own right operate the road, furnishing rolling stock and charging for the use of the same, and the two and a half per cent, of its OAvn expenses as operating expenses. There is certainly nothing in its terms or effect that Avould relieve the defendant from liability as the actual operator of the road, and the fact that the memorandum agreement may not have been formally executed by the defendant or any of its officers, does not do aAvay Avith the potential fact that the defendant was in possession of the road and actually operating it, as Avas understood by its officers, on those terms. If not on those terms, on Avhat terms, beneficial to the defendant, or relieAdng him from responsibility, can it be said the road Avas operated ?

The judge charged at the request of the plaintiff;:

That a party in possession of and operating a railroad, whether a lessee or otherwise, is xjrimarily liable for all injuries and default; and that even if the train or engine inflicted the injury is hired to another company, if the company owning the train employs the engineer, and said train is under the control of the engineers and officers of the company hiring it, said company is liable in damages for any injury inflicted; and that the owner of the engine inflicting the injury is liable to the person injured, if said engine is operated by an engineer in the employ and under the control of said owner.

That a company controlling and operating a railroad and employing all the agents, servants, engineers, conductors, and other employees, and having complete control over them, and doing business in its own name, whether said company operates and controls as lessee or otherwise, such company may be regarded as the owner pro licic vice of the road it controls and operates.

Each of these charges -were excepted to by the defendant, who requested the following charge: If the jury believe from the evidence that the fire which cle .stroyed the property of the plaintiff on the 9th of April, 1888, in the town of Tavares, originated from sparks emitted from an engine which left Tavares on the morning of the fire, ran over the track of the Sanford & Lake Eustis Railroad Company, and that the agents operating said engine were paid by the Sanford .& Lake Eustis Railroad Company, and were solely under the control of the Sanford & Lake Eustis Railroad Company, then the Jacksonville, Tampa & Key West Railway Company, the defendant corporation, is not responsible for the act of said agents and servants, although they may believe said agents and servants were guilty of negligence in operating said engine. This charge was refused, and the refusal excepted to.

We do not see that the judge erred either in instructing the jury as he did, or in refusing to charge as he was requested by the defendant. If one railroad company operates a railroad under a lease from another, it is responsible for its negligence to persons injured thereby, and the invalidity in law of the léase is no defence to the lessee company against liability'to persons suffering by its negligence. If its possession or operation of the road is, in law, unauthorized, it is no less the author of the injuries its want of care may proximately inflict upon them, and it cannot use one wrong as an excuse for or bar to liability for another which it could not have inflicted but for the first. 3 Wood’s Railway Law, sec. 489, 490; Rorer on Railroads, 606; Sprague vs. Smith, 29 Vt., 421; McCluer vs. Manchester & Lawrence R. R., 13 Gray, 124; Wasmer vs. Delaware, L. & W. R. R. Co., 80 N. Y., 212; Clany vs. Iowa Midland Ry. Co., 37 Iowa, 344; Pittsburgh, C. & St. L. R. R. Co. vs. Campbell, 86 Ill., 443; Doolan vs. Directors of Midland R. R. Co., Law Reports, 2 App. Cases, 792. In sprague vs. Smith, 29 Vt., 421, where trustees of mortgage bonds had taken possession of a railroad on account of default in payment of interest, and at the request of the company, and a question was whether the defendants were personally liable upon contracts made by the operators upon the road or for their negligence or misconduct, while the defendants continued to operate the road and to receive freight and pay for passengers for the benefit of the resiif-is qnetrust, Judge Red.field, speaking for the court, and after remarking that lessees are liable to the same extent aw the lessors would be, says: Indeed, there can be no question we think, that a mere intruder into the franchises of a railway corporation who should continue to use it for his own benefit, would be liable to passengers and the owners of freight who should employ him, to the same extent precisely as the company itself, wlrle continuing the same business. Any other view of the liability of such intruder would be to allow him to allege his wrong in his defence; and we can wee no reason why the defendants are not liable to the same extent as the company would have been, and upon similar grounds to those upon which lessees, or any others exercising the franchises of the company for the time must be; that is, they are the ostensible parties who appear to the public to be exercising the franchises of the company. It would be perplexing in the extreme to re-, quire strangers, suffering injury through the negligence of operatives under the defendant’s control to look beyond the party exercising such control. The party having this independent control is generally liable for the acts of those under such control, whether of contract or tort. In Hall vs. Brown, 54 N. H., 495, the defendants, owners of a private railroad, were, with the consent of a railroad corporation, accustomed to run their cars and engines over a part of the track of the corporation, including a highway crossing, and it was held that while thus in occupation of the track they were to be considered proprietors of the railroad of the corporation, under a statute providing that no such “proprietors” should obstruct by their engine, cars or train, any highway, under a certain penalty. Bee also Tracy vs. Troy & Boston R. Co., 38 N. Y., 433. And in McCluer vs. Manchester & Lawrence R. R. Co., 13 Gray, 124, the decision was, that parol evidence that a railroad corporation established by law in another state has held itself out through its agents as a common carrier over a railrohd in Massachusetts, is sufficient prima facie evidence of its capacity to contract for such carriage, to maintain an action against it for the loss of merchandise entrusted to it.

The defendant company was in possession and operation of the road and the train was under the control and management of its officers and.agents, and whether we consider or exclude from our consideration 'the memorandum, and whether the possession was rightful or wrongful, and whether the agreement of lease was valid or invalid, the company is liable. There is nothing in the autorities or the charge of the conrt inconsistent with this view.

IT. There is testimony to the effect that on the morning of April 9th, 1888, as a train of cars drawn by a locomotive of the defenla-nfc company started from Tavares, a large quantity of sparks, cinders and coals were emitted from the smokestack of the engine, and fell on the ground and side walk in front of buildings facing on the street or boulevard which intervened between these buildings and the railroad track, and in one instance inside of one of the buildings from nearly opposite to which the train started, setting fire in a number of places, to saw dust on the street near a pine Avood side-Avalk which, aaus adjacent to the buildings, and to trash which had collected under the sidewalk, and to some paper on a case of goods in the particular building referred to; and the sidewalk, which was elevated a few inches from the ground, caught fire, and the fire Avas communicated under and to one of the stores, and thence to other buildings, including those of the plaintiff, whose buildings, constructed of pine wood, together with its personal property described in the declaration, were entirely consumed. That a very strong wind, incident in that section of the country to the season, was blowing at the time in the general direction in which plaintiff’s buildings lay from where the fire was set out. The fire in the saw dust was suppressed in a number of places, but whatever efforts were made as to that in the sidewalk were ineffectual, and the llames spreading with great rapidity, nearly the entire town was destroyed within, according to the great preponderance of the testimony, one hour. It is testified by one witness that some of the coals were as large as three-quarters of an inch long, by a quarter of an inch wide, and by another that they were as large as the end of his little linger, and by another that they were the size of his finger nail, and by another, they were a quarter of an inch long, and they are also described as being burning coals when they fell. There are other witnesses who do not describe the sparks as being large, yet testify to seeing them and their setting out the fire, and some witnesses who saw this much, do not connect the sparks with defendant’s engine. The engine did not leave on time, but there is a. conflict as to the time it was behind, the plaintiff’s witnesses putting it at as much as forty minutes, and the defendant’s about fifteen minutes, leaving Tavares about 7:4» a. m. Plaintiff’s witnesses say that the engine started off with a sudden jerk, a.nd moved at a very great speed.

The testimony of certain witnesses of the defendant (the conductor, engineer, firemen, and foreman boilermaker) without stating what point each or any of them has testified to, is to the eifect, that on the morning in question, a ‘ ‘mixed train’ ’ came into Tavares, and the-freight cars being thrown off, the engine, Avhich was numbered 12, went around the “Y” with the baggage and passenger coach, took water, and returned to the platform, when the engineer oiled up, and on signal from the conductor, the train pulled out on its way to Sanford, going at the speed of about three or four-miles an hour until it got beyond the limits of the town, not starting at this speed, however, nor with a jerk, but as ordinarily, the engineer opening his throttle enough to start the train, or probably some two, three- or four, of its twenty-five or thirty notches; that the fire ivas made of lightwood without bark, and was a “fresh” or “green” fire, the fire box being full, filled while the engineer was oiling up to start out, and that such a fire makes a heavy dark smoke, and that with such a fire an engine does not throw sparks; that the engine was an extension front engine, and in first class, repair at the time; and that the spark -arrester was a. Cook arrester, a very good arrester, and as good as any in general use in extension front engines, and in perfect order, ancl all the appliances of the engine -were in good repair when the engine left the shops of' the company about the last of March preceding the fire, having been put in that condition then; that the dampers were closed, and the spark arrester was in proper position; and that it would not be possible to move a spark arrester while the engine was hot; that the slide, or door, of the spark arrester, which slide or door is about eight or ten by fourteen inches in size, was closed at the time the train started from, as it was on its arrival that morning at Tavares, and that this was indicated or shown by the handle to the rod of the door or slide, which handle is in full view of the engineer and fireman, was almost perpendicular downward, and had a pin on a chain to hold it in position, which pin was in its hole or proper place; that to open the door the handle had to be thrown up, the door working on an axis; that the spark arrester was examined the next afternoon and found to be in position and sound condition, there being no holes in the netting, and did not look like it had been tampered with; that the construction of the door or slide was such as to have a tendency to keep it closed, independent of the pin on the outside for that purpose; that the handle weighed four pounds, and that it would require a pretty good jerk sometimes, and especially when the engine was hot, to open the slide; that he does not see how there could be any movement of the door, even if the pin should be out, during the running of the engine. To cause it to oscillate would take a pretty good jerk of the engine; that it might do so if the engine should leave the track, but, not' otherwise; that part of tlie netting of the spark arrester had meshes an eighth of an inch square, and the other part was for smaller meshes. The engineer states that if coal or cinders three-quarters of an inch long should come from an extension front engine, that it would indicate that the spark arrester was in bad order, and that the emission of such sparks would probably occur if the engine was working hard; that if the spark arrester was closed and the netting in perfect condition it would not have been possible for sparks of the size of a finger nail—three-quarters of an inch long—to have escaped from the engine. The foreman boiler maker says that if the netting was in good order, &c., the sparks of the large size indicated could not have passed through the netting. The conductor says he did not notice any sparks from the engine; that he was standing in the door of the baggage car, with Map St. Clair Abrams, looking toward the town.

It is insisted by defendant that the burden of proving negligence, which burden is on the plaintiff, is not met by showing the mere fact of the setting out of fires by sparks emitted from the defendant’s engine, but that he must go further and prove that the sparks were emitted negligently, which negligent emission, it is admitted may be proved by circumstances of a character to raise a presumption of negligence, which presumption, however, may be successfully rebutted; and defendant insists, that even if plaintiff’s testimony is sufficient to raise such a presumption of negligence by defendant, it has been successfully rebutted by the latter in proving due care on its part in handling the engine, and that the engine was fitted with proper appliances for arresting sparks, and that they were- in proper order and condition. .

The trial judge refused the plaintiff’s request of á charge containing the proposition that if the jury were satisfied from the evidence that sparks came from the locomotive and caused the fire, which, spreading, destroyed plaintiff’s property, the burden of proof rests on the defendant to show that he ivas not negligent; but, on the contrary, he instructed them in accordance with the view requiring the plaintiff to prove that the fire was set out by the defendant negligently or through some default of duty or proper care on its part. Wharton on Negligence, sec. 870; Shearman & Redfield on Negligence, sec. 57-60; Pierce on Railroads, 437, 438; 1 Redfield on Railroads, 476; 2 Rorer on Railroads, 796; Savannah, Florida & Western Ry. Co. vs. Geiger, 21 Fla., 669; Jennings vs. Pennsylvania R. R. Co., 93 Penn. St., 337; F. & B. Turnpike Co. vs. P. & T. R. Co., 54 Ibid, 345. That negligence may be proved circumstanially, there can be no doubt either in reason or upon authority. A. T. & S. F. R. R. Co. vs. Bales, 16 Kansas, 252; Philadelphia & Reading R. R. Co. vs. Schultz, 93 Penn. St., 344. The fact that no instrument has yet been found which entirely prevents the escape of sparks from locomotives, seems, when coupled with the fact that the use of these engines is both lawful and eminently useful, a sound reason for the view that the mere emission of sparks, or the simple setting out of fires thereby, is not per se evidence of negligence, and will not throw upon the defendant the burden of removing such presumption, but when the circumstances of the emission are such as common experience, or the known efficiency of approved spark arresters in general use, tells us would, not exist if such instruments are properly used, such circumstances, of themselves, suggest negligence. Shearman & Redfield, sec. 59, 60; Wharton, sec, 871; Wood on Railroads, 1348-9; Garrett vs. C. & N. W. R. Co., 36 Iowa, 121; Pennsylvania & Reading R. R. Co. vs. Schultz, supra. Where the sparks are unusual in size, or both of unusual size and in unusual quantity, the inference of negligence arises. Ibid; Jackson vs. C. & N. W. R. Co., 31 Iowa, 176. In Hall vs. Sacramento Valley R. Co., 14 Cal., 387, the fact that fire was communicated to plaintiff’s grain from defendant’s engine, with proof that this result was not probable from the ordinary working of the engine, was held sufficient prima facie proof of negligence to carry the case to the jury. Henry vs. S. P. R. Co., 50 Cal., 176; Ellis vs. P. & R. R. Co., 2 Irredell, 140; Herring vs. Wilmington & Raleigh R. R. Co., 10 Ibid, 402. In Huyett vs. Philadelphia & Reading R. R. Co., 23 Penn. St., 373, it was shown that the weather was very dry and windy, the wind blowing strong’ across the road towards plaintiff’s house, which was seventy-seven feet from the railroad track; sparks were seen ■flying’ from the engine to the distance of more than fifty yards, and farms and fields were set on fire about the same time and at considerable distance from the road; the defendant’s evidence showing that the engines were in good order, and all provided with good spark catchers; that they flew most when the door was open, and the fire stirred, and considerably in firing up. The lower court directed a verdict for defendant,, but was reversed on appeal, where it was held that the question of defendant’s negligence was one for the jury to decide. Gagg vs. Vetter, 41 Ind., 228; Pennsylvania R. R. Co. vs. Hope, 80 Penn. St., 373.

The testimony in behalf of the plaintiff shows an extraordinary escape of sparks of sparks, both in quantity and size. The witnesses who testify to this are numerous, and the terms in which they describe them cannot fail to impress anyone, if the facts were as represented by them, that the emission of sparks was in all respects far in excess of anything likely to occur in the ordinary operation of a locomotive dxily supplied with modern appliances approved by the test of use, and properly managed by competent operatives. This testimony was of itself, to say no more now, sufficient to raise a presumption of negligence upon the part of tl\e defendant, and throw the burden of proof of care upon it. The railroad company does not present any affirmative testimony that sparks were not emitted as asserted by the witnesses of plaintiff, but its main reliance on this point is on the evidence that the engine was in good condition, supplied with proper appliances, and properly managed. In considering this point we shall assume that the testimony of defendant’s witnesses is to the effect that the engine was perfect in all -its parts and appliances, and its management unequalled, -yet after doing this the law governing the case will not permit us to disturb the finding of the jury, in so far as it imputes negligence to the defendant.

In Brushberg vs. Milwaukee L. S. & W. R. Co., 55 Wis., 106, the issue was whether the fire which destroy ed plaintiff ’ s barn was caused by the negligence of the railway company; the defendant’s evidence was that the engine was perfect in all respects, and supplied with all suitable appliances for preventing the escape of sparks, and run in a careful manner, and that the spark-arrester and fire box were both closed so that no dangerous sparks or fire could escape ; and the testimony of the plaintiff was not only that the barn was found on fire after the engine passed, but that when passing it the engine wras emitting sparks in great numbers and coals an inch or more long; that some of these struck the barn and some went under it; that coals of a similar size were seen immediately after on the track and beside the track in the immediate vicinity of the barn, and that severid stumps, a short distance from the barn, and near the tracli, were also found on fire soon after; and the officers of the company testified that if the engine had been properly run and cared for no coals of the size described could have escaped. The jury found for the plaintiff and the judgment was at firmed on an appeal taken by the railroad company. Alluding to the testimony in behalf of the plaintiff as to' the large coals and cinders, and their being carried by the wind to and under the barn, and that the barn was on fire a few minutes after the train had passed, it is said in the opinion: that there certainly was evidence to go to the jury, not only as to whether the fire was communicated to the barn, but also whether the engine was properly managed and run at the time, though it be admitted that the evidence on the part of the company was conclusive that the engine was properly constructed and furnished with the most approved appliances for preventing the escape of sparks, coals and cinders ; that if the engine was properly constructed and handled it would not and could not have emitted coals and cinders of the size indicated, and therefore it became a question of veracity between plaintiff’s witnesses and those of defendant, and this question was one which had tobe determined by the jury, and which the court could not determine. Referring to the cases of Spaulding vs. Chicago & Northwestern Railway Co., 33 Wis., 582, and Read vs. Morse, 34 Ibid, 315, (the former of which is relied on by the j appellant before us,) it is further said : Had the plaintiff’s proofs gone no further than to show that sparks escaped from the engine and were carried by the wind as indicated, without showing the escape of coals and cinders of an unusual size, the proof offered by the defendant might hare been sufficient to rebut the presumption of negligence on the part of the employees arising from the fact that such sparks ignited the barn, and put the case within the rulings of the two cases referred to. In A. T. & S. R. Co. vs. Bales, 16 Kansas, 252, the defendant’s proof was that the engine was of the first-class, in good order and condition and operated by a careful and skillful engineer,to the best of his knowledge and ability, and the plaintiff proved that the same engine on the day of the alleged fire caused a large number of fires, a dozen or more, but that other engines operated over the same track on the same day and before and since did not produce any such results. Now, says the opinion, it would seem to us that such evidence would lead irresistibly to the conclusion that there was negligence somewhere. Of course it woxild not locate the negligence, or show whether the fault was with the engine or the engineer. * * Now when the jury found that the engine was good and in proper condition, then they had to weigh the foregoing circumstantial evidence with the direct testimony of the engineer who testified that he managed the engine skillfully and carefully. If they believed from all the circumstances of the case that the testimony of the engineer was wholly unworthy of belief, they had the undoubted right to so find and entirely disregard it, and to say that the circumstantial evidence of the plaintiff tending to prove negligence, immeasurably outweighed the direct and positive testimony of the defendant declaring there was no negligence. The court could not weigh the evidence. In P. & R. R. Co. vs. Schultz, 93 Penn. St., 341, there was testimony that the engine was famished with an approved sparkarrester, and was examined on the day of the fire, when it was found to be in good condition, and that it so continued for months afterwards. Unfortunately for the defendant, says the court, the plaintiff furnishes abundant proof that the engine in question either was not furnished with the necessary spark-arresting appliances, or if so, they had been tampered with by the persons in charge of the same. On any other theory it is unaccountable that this locomotive alone, of all run on the road, should have fired the country through Avhioh it passed almost daily for the period of two weeks, and that it should have become so notorious in this respect that, as one of the Avitnesses says: “We watched for that train every day so that we might be ready to put out fires.” Moreover two of plaintiff’s witnesses say that this engine threw out sparks as large as a hickory nut, and there is the further significant testimony that shortly after the Schultz fire this locomotive ceased to be dangerous, or as one of the witnesses said: “After this Ave had a rest.” See also St. L. A. & T. R. Co. vs. Gilham, 39 Ill., 455; Webb vs. R. W. & O. R. R. Co., 49 N. Y., 420; P. & R. R. Co. vs. Hendrickson, 80 Penn. St., 182; Ill. Cen. R. Co. vs. McClelland, 42 Ill., 355; 23 Penn. St., 373.

Tlie application of these authorities to the testimony of the case before ns is patent. An inspection of the piece of the netting in evidence, with meshes one-eighth of an inch square is, to say nothing of the testimony of the engineer and foreman boiler maker enough to satisfy anyone that the larger coals could not have passed through the arrester if the door had been kept closed, or the arrester in proper condition. This impossibility rendered the testimony of the plaintiff’s witnesses and that in behalf of the defendant on the subject of the engine’s having a spark arrester, or admitting that it had one, of its proper management, and hence on the issue of negligence 'oel non, absolutely irreconcilable, and it made a question of credibility of witnesses, the decision of which the law remitted to the jury, who have settled it in favor of the plaintiff; and under the jurisprudence governing us, this court cannot interfere, whatever may be its view as to the correctness of their judgment. There is nothing in any case cited by the appellant that is inconsistent with these conclusions.

It is urged under this head, that certain charges given to the jury were erroneous. These are the 3rd, 14th, 19th, 20th, 22nd and 23rd. The objection urged against the 20th charge is, it affirms that the defendants were required to exercise the “utmost care,” under the circumstances indicated in the charge. The authorities relied upon in support of the objection are, Wharton on Negligence, sec. 869; Frankford and Bristol Turnpike Co. vs. Philadelphia & Trenton R. R. Co., 54 Penn. St., 345; Michigan Central R. R. Co. vs. Anderson, 20 Mich., 244; Kansas Pacific R. R. Co. vs. Butts, 7 Kansas, 308. The first of these authorities, as far as applicable, calls for “the diligence good specialists in this department are accustomed to exercise, ’ ’ and for the exercise of ‘ ‘every precaution '* * * to prevent injury.” In the Pennsylvania case the plaintiff’s bridge had been constructed long before the railroads, and was destroyed by fire set out by the locomotive'of a passing train. The track was about one hundred and fifty feet from one end of the bridge, and three hundred feet from the other, and the nearest depot stood about four hundred yards from the bridge. The plaintiff’s contention was, in so far as the case need be noticed now, that the station should not have been placed so near the bridge, and that the bridge should not have been passed by the locomotive under steam. It was shown by the testimony that an engine under ordinary headway would run six hundred feet with the steam shut off, but that stopping at the station required that steam be put on to run over defendant’s bridge over the same creek that plaintiff’s bridge spanned. There was no evidence as to any unusual emission of sparks either in quantity or size. The doctrine of the case, announced as abundantly supported by authorities adduced oh both sides, is, that there being in the charter of the company no prescribed limit of approach towards buildings and bridges, it could locate its road and station on such route and at such points as in the judgment of the directors would be beneficial to the interest of the corporation and the public; that in the absence of proof of a special motive to do injury, we must presume that the location was made for proper ends, and not to do injury ; that the proximity of the station and of the line of the road to the plaintiff’s bridge could not in itself be considered .a ground of legal liability, but an element only in as-' certaining the decree of reasonable care to be used under the circumstances ; that the law in conferring the right to use an element of danger protects the person using it except for an abuse of his privilege, and that in proportion to the danger to others will arise the degree of care and caution to be used in exercising the privilege; that great danger demands higher vigilance, and more efficient means to secure safety ; where the peril is small less will suffice; that it is undoubtedly the duty of a railroad company using such dangerous machines fired by intense heat and running-in close proximity to our houses and valuable buildings to use the utmost vigilance and foresight to avoid injury; that itis the duty of those using these hazardous agencies to control them carefully, and adopt every known safeguard, and to avail themselves from time to time Of every approved invention to lessen their danger to others; that questions of skill, vigilance, care and proper management in any business, are necessarily questions of fact, depending upon the circumstances of each case, and are to be referred to a jury ; what is care in one case may be negligence in another, where the clanger is greater and more care is required ; that as the degree of care has no legal standard, but is measured by the facts that arise, it is reasonable that such care must be required as it is shown is ordinarily sufficient undar similar ciroumstanc.es to avoid the danger and secure the safety needed ; and therefore that ordinary care is the only rule that can be stated by a court; and that which is ordinary care in a case of extraordinary danger, would be extraordinary care in a case of ordinary danger; and that which would be ordinary care in a case of ordinary danger, would be less than ordinary care in a case of extraordinary danger. Holding these views, the court said it could not controvert the proposition of the Turnpike Company that it is the duty of railroad companies to adopt the best precautions against danger in use, and it is not sufficient for them to exercise what, under circumstances of less risk, would be ordinary care. It was held, however, that the trial judge had not violated these principles in his charges. The conclusion of the court upon the point was, that to hold it improper to stop at the station, and that steam must be shut off in passing by the bridge, would be to abridge the prpper and ordinary use of the road; that the injury in the case did not arise from any special act of negligence, but from a customary and lawful use of the road ; that such use would, however, not justify stopping to blow off steam through the mud valves at a common crossing where many horses pass or are frightened by the noise, or stopping in a high wind opposite a new house in the process of building, where the burning cinders and sparks are carried through the open doors by the wind; that negligence has been defined to be the absence of care according to the circumstances, but that it liad never been held that steam must be shut off in passing-even in (dose proximity to dwellings, though many miles of railroad run within a few feet of valuable houses, mills and manufactories, and indeed through towns and cities.

The Michigan case is one in which the plaintiff’s building- was destroyed by fire communicated by sparks flying from defendant’s engine. The lower court, says the opinion, charged the jury that regard must be had to the actual state of things at the time, the force and direction of the wind, dryness of the .weather and proximity of the building to the railroad, and that what might be ordinary care on a still and wet day, might not be on a windy and dry one, and when near combustible matter; the question still being what care a. prudent man would exercise in precisely similar circumstances. There had been full testimony upon the character of the engines and stacks, and the use of the proper means to render them as secure as possible from doing mischief by the discharge of sparks, and this charge was independent of any question as to the quality and character of the equipments as suitable to be used. This rule was held to be incorrect, the Supreme Court saying: that railroad trains cannot deviate from their track, and must make schedule time, not only for purposes of business, but for consideration for human life, and that those who establish themselves in the neighborhood of railroads must know that trains are expected to run with regularity, and if there are special risks arising from no want of care in the proper equipment and management of engines and trains, those risks are not chargable to the railroad, but are incidental to the situation, .and the extra care they demand devolves upon the other party, and the consequence of his not exercising it must fall upon him, because the railroad is notin fault. The Kansas decision merely decides that where the fire escapes owing- to high winds, and no negligence or want of care upon the part of the railroad -company, the latter is not responsible.

There is nothing in any of these authorities that requires us to hold the use of the word utmost to be fatal to the charge. The Pennsylvania court uses the same expression asserted here as being objectionable in the •charge. hTothtng need be said of the section in Wharton’s work, nor of the Kansas case, and we think that the meaning of the Michigan decision is the same as that in Kansas, which is, that where there is no negligence upon the part of the railroad, it is not liable for ■damages attributable solely to the wind, damage which the exercise of proper care was unable to avoid. In neither of them was the locus of the injury in a village or town.

In Fero. vs. Buffalo & State Line R. R. Co., 22 N. Y., 209, the charge was, that less care is required of railroad companies while running their trains in the country Avhere there is no property near their track exposed to fire, than in a village where wooden buildings are situated so near their road as to be exposed tc> fire from the locomotive, and at a time when the wind is blowing in a direction from the engine towards the buildings, and that under such circumstances they are bound to use the utmost care, and if from the want of such care fire is communicated to such buildings and they are consumed, the company will be liable, in the absence of contributory negligence upon the part of the owners, and the ruling was affirmed by the Court of Appeals, it observing that a much higher degree of care, both in respect to the rate of speed, and the watchfulness to prevent casualties, should manifestly be required when trains are passing through or remaining stationery in the streets of a city or densely popxilated village, and that it wa.s not stretching the rule unduly to say that under such circumstances the railroad company is bound to use the utmost care to guard against the damages which obviously attend such a condition. “The substance of the charge, without criticising its terms with too great nicety, is that the care must be proportioned to the danger of accidents, and that where there is great danger there must be a corresponding degree of care.” See also Longabaugh vs. V. C. & T. R. R., 9 Nevada, 270, 299, and G. T. R. R, Co. vs. Richardson, 91 U. S., 454, 469, 470.

In view of the New York and Pennsylvania cases we do not say, and do'not think there was error in the use of the word “utmost,” in the 20th charge, and there is nothing in the authorities cited by appellant, or in any falling under our notice, that is inconsistent with this conclusion. Moreover this charge distinctly affirms that the degree of care required is to be proportioned to the danger to be apprehended of inflicting injury to the person or property of others, by which we understand the judge announced the same doctrine as is announced in the opinions in the two cases referred to, which in other words, is that the degree of care is to be measured by or according to the facts that arise, or in proportion to the danger, and with which rule the use of the word utmost as defining the care required in a case where circumstances are like those existing in the one at bar, is not inconsistent. We fail now to conceive a case, likely to occur in the natural course of things, that would call for a higher degree 'of care against damage by fire than the circumstances of the one before us called for.

In one of these charges it is said that the engine must have the “most approved appliances,” to prevent the escape of sparks, and another that a railroad company should provide engines with “modern appliances,” in another, the 23d, the view announced is, that the engine must have been supplied with “a spark-arrester of the best mechanical. invention and construction in general use at the time.” These charges were all given at the request of the plaintiff. Instructions given at the request of the defendant are, in so far as they relate to the character of the applianees, as follows : That it is not negligence to run an engine which emits sparks, provided the company use machinery equipped with such spark-arresters and mechanical contrivances as are the best generally knowm and in use in the country for the prevention of the escape of sparks, and that are approved by experienced railroad operators. ’ ’ That the company is only required ‘ ‘ to avail itself of the best mechanical contrivances which had been tested and put in general use at the time of the fire, for preventing the burning- of the property of others, but it is not required to use every possible contrivance, although patented and recommended in scientific discussionsand that the engine shall be supplied £ £ with a spark-arrester of the best mechanical invention and construction in general use at the time, or, as in still another, or fourth charge on the subject, one “of the most approved style in general use.”

The language of the twenty-third charge is excepted to as too stringent. Of the six authorities cited by counsel for appellant, on this point, we have access to Wharton’s Negligence, sec. 872; Frankford & Bristol T. Co. vs. P. & T. R. Co., 54 Penn. St., 345; Steinwig vs. Erie Ry. Co., 43 N. Y., 123; Jefferies vs. P. W. & B. R. Co., 3 Houston, 447. These authorities, taking them in their order, hold, the’ first, that a company cannot be required to use the “most perfect possible contrivance to prevent the escape of sparks,” and until the contrivance “ has been accepted in general use a company cannot be charged with negligence in not adopting it;” the second, that it is the-duty of the company “to avail themselves from time to time of every approved invention to lessen ’ ’ the danger; the third, that it should use any improvements known to practical men, and which has actually been put into' practical use, but a failure to take every possible precaution which the highest scientific skill might suggest, or to adopt an untried machine, or mode of construction, is not of itself negligence; and the fourth, that engines should be supplied “with such spark-catchers-as were then in general use.”

The charge excepted to considered alone, or in connection with the others, does not violate these authorities. The several instructions set forth the law correctly and in accordance with the current of authority.

III. The defence of contributory negligence, is asserted in the fifth plea, and it is attempted to maintain it by evidence which tends to show that there was an accumulation of trash in the'streets and under the sidewalk, where the fire was set out, and under the store or building of Lester, to" which it communicated, and from ■ which it spread to other buildings, including those of the plaintiff. There is nothing in the record that connects the plaintiff in ownership or control of the street or sidewalk where the fire was set out, or of the Lester premises, or in responsibility of any kind for their condition; yetjjit is contended that as the owner or keeper of the Lester^premises, and the authorities of the town of Tavares, were negligent, and thereby they contributed to whatever' injury they respectively may have sustained, and could not recover damages of the defendant, the platntiff cannot be in a better position than they would be. Assuming, for argument’s sake, that Lester and the town authorities were culpably negligent, and that such negligence was contributory to any injury they may have sustained by the fire, that neither of them could recover for it, and that but foi their negligence the fire would not have communicated to plaintiff’s property, there is yet no benefit to be found for the defendant in such an assumption. Lester and the town authorities are entire strangers to the plaintiff and the fault of a mere stranger, however much it may contribute to the injury, is no defence for one whose negligence is the proximate cause of the injury. The fact that both the defendant and the stranger may be liable to the plainiiff is not a defence for either. Cooley on Torts, 684; Shearman & Red-field, secs. 61, 65, 66; Small vs. C. R. I. & P. R. Co., 55 Iowa, 582; North P. R. Co. vs. Mahoney, 57 Penn. St., 187; Eaton vs. Boston & L. R. Co., 11 Allen, 500; Lane vs. Atlantic Works, 107 Mass., 104; Martin vs. North Star Iron Works, 31 Minn., 407; Hunt vs. Missouri R. R. Co., 14 Mo. App., 160; Atkinson vs. Groodrich Transportation Co., 60 Wis., 141; Paulmier vs. Erie R. R. Co., 34 N. J., (Law) 151; Lake vs. Milliken, 62 Me., 240; Sullivan vs. Philadelphia & Reading R. R. Co., 30 Penn. St., 234; Sheridan vs. Brooklyn City & Newtown R. R. Co., 36 N. Y., 39; Webster vs. Hudson River R. R. Co., 38 N. Y., 260; Arctic Fire Ins. Co. vs. Austin, 69 N. Y., 470.

The charges of the judge to the jury on this point are complained of as excluding entirely from the latter the consideration of the evidence showing the condition of the streets and sidewalk; that it was a question for the jury to say whether this condition of the streets constituted contributory negligence, but the court determined this question itself by deciding that no act or omission of that kind constituted contributory negligence. The charges being on this particular point, to which appellant has objected, are the 6th, given at plaintiff’s request, and the 4th, given by the judge of his own motion.

These charges are as follows:

6th. That the plaintiff is not charged with the duty of keeping the streets or the sidewalks of the town in good condition or free from trash ; that the fact that there was trash in the streets or under the sidewalks, or that the sidewalks were made of inflammable material, does not constitute contributory negligence so as to prevent plaintiff from recovering ; that contributory negligence to prevent recovery must be some omission of duty which the plaintiff was compelled to perform, or some act by him concurring in the destruction of his property; that the owner of property is not compelled to keep his property in such a condition as to guard against the negligence of a railroad company.

4th. The contributory negligence of the plaintiff, in order to defeat a recovery, must be such as contributed as a proximate cause to the occurrence from which the madage arose, and it must be the negligence of the plaintiff, his agents, servants or employees, and not that of third persons, and the burden is on the defendant to prove it, .unless disclosed by plaintiff s testimony.

15th. That to charge the plaintiff with contributory negligence, defendant must show by affirmative testimony that the plaintiff did something, or failed to do something, which it was the duty of the plaintiff to do, or not to do, that concurring in causing the fire or the spread of the fire to plaintiff’s property, and which tended to produce the destruction thereof, and that the burden of proof is on the defendant to show such contributory negligence.

These charges considered as bearing upon the negligence of the town authorities and Lester, are, in the light of the testimony, which fails entirely to show any privity or responsibility of plaintiff with or on account of either of them, entirely in consonance with the law as we find it written in the books. Had the judge submitted to the judgment of the jury the question as to whether the contributory negligence of a stranger is a defence to plaintiff’s action against a negligent defendant, he would have grievously renounced, for the time, his own proper function of instructing the jury as to the law of the case, and made them, instead of the court, judges of the law.

There is nothing -in the authorities cited by appellant (Pierce on Railroads, 434; Coats vs. Missouri, Kansas & Texas Ry. Co., 61 Mo., 38; Ohio & Mississippi R. R. Co. vs. Shanefelt, 47 Ill., 497; Chicago & Northwestern Ry. Co. vs. Simonson, 54 Ill., 504; Murphy vs. Chicago & Northwestern Ry. Co., 45 Wis., 222; Kessee vs. Chicago & N. W. R. R. Co., 30 Iowa, 78; Kansas Pacific Ry. Co. vs. Brady, 17 Kansas, 380;) that in any way conflicts, on this point, with those we have given above. Counsel have overlooked the distinction made by the law between the negligence of the plaintiff, and that of a stranger to him.

That the plaintiff was not bound to keep guard against the negligence of the defendant, but has the right to enjoy his property in the ordinary manner, and that while he is charged with the duty of saving his property from destruction, if it can be saved, he is under no obligation to stand guard over it continuously watching it to protect it from the negligence of the defendant, is a proposition of law too clearly correct to admit of any controversy, and nothing in the authorities cited by appellant question it, and the same is true of the charge that the fact that the jdaintiff’s property was exposed to the reach of sparks of a locomotive engine is no defense to an action of this kind, and the plaintiff has the right to construct his buildings on any part of his property, and to enjoy the same without rendering himself liable to the negligence of the defendant.

There was no error in the fifteenth charge. L. & N. R. R. Co. vs. Yniestra, 21 Fla., 700. Neither the plaintiff’s, nor the defendant’s evidence shows any contributory negligence.

IY. The appellant also assigns as error the refusal of the judge to give the following charges requested by it: “That if the jury believe from the evidence that at the time of the fire, plaintiff’s property, or any part ot it, was in the possession of a lessee or tenant of the plaintiff, and that by the exercise of the ordinary prudence and care under the circumstances then existing, the said lessee or tenant might have saved or preserved from destruction the property of the plaintiff, or any part of it, then the plaintiff cannot recover damages for the destruction of the property, or that part of it which might have been saved, even though the defendant were guilty of negligence in setting out the fire which caused the destruction of the plaintiff’s property.”

“That if the jury b'elieve from the evidence that at, the time of the fire the property of the plaintiff, or any part of it, was in the hands of a tenant or a lessee of the plaintiff, the relation of such tenant or lessee to the property in such as to require him to take reasonable care to prevent damage and loss of said property; and if they believe from the evidence that the property of the plaintiff, or any part of it, at the time it was destroyed, was in the possession or control >of said lessee or tenant, and that he failed or neglected to save said property, or any part of it, from destruction, which he could have done by reasonable care and diligence, then the plaintiff cannot recover from the defendant for that part of the property destroyed in consequence of said failure or neglect.”

Contributory negligence, as it is defined by the books, must emanate from the plaintiff, or from some person for whose act he is responsible. Shearman & Redfield on Negligence, sec. 01. In the case of Bartlett vs. Boston Gas Light Co., 117 Mass., 533, cited by appellant, it was held that the owner of a house could not maintain an action against - a gas light company for an injury to his reversionary interest caused by the negligence of the company in permitting gas to escape into the house, if the immediate cause of the injury was the explosion of ths gas by the negligence ot the tenant in possession of the house. The tenant having smelt gas during the night, went into the basement with a lighted candle, and the gas ignited from the candle flame and an explosion took place. The explosion would not have occurred but for this, reckless or negligent conduct of the tenant, and the conclusion of the court as to the absence of right of the plaintiff to recover was held to rest, not upon the ground of any personal relation of agency between the landlord and his tenant, but upon the relation of the, latter to the property as having the present control and charge of it, and therefore being the one upon, whom devolved the duty to take reasonable care to-prevent damage.

We are not prepared to say that the charges requested would not have been proper if there was testimony in the record to support them. But if they would be proper under the circumstances stated, we find that the only affirmative testimony directed to the conduct of the lessee of the hotel shows that he did endeavor to save, and actually did save, some of the personal property in the hotel. Not only can it not be said that he was negligent in not saving other personal property than that which wras actually saved, but there is not in the record sufficient testimony to have enabled a jury to say that any particular property destroyed could have been saved by him. The testimony should at least go to the extent of identifying the property which might have been saved by the exercise of proper diligence or care, so as to enable the jury to fix the amount of reduction of damages on account of such negligence. St. Louis, I. M. & S. Co. vs. Hecht, 38 Ark., 357; S. C. 9 Am. & Eng. R. R. Cases, 222; Toledo, Peoria & Warsaw Ry. Co. vs. Pindar, 53 Ill., 447; Chicago & Alton R. Co. v. Pennell, 94 Ill., 448; Bartlett vs. Boston Gas Light Co., 117 Mass., 533; 2 Rorer on Railroads, 795; Taylor on Landlord and Tenant, sec. 196. The rejection of the charges, assuming them to announce correct abstract propositions of law, was immaterial to the defendant, considering the testimony before us. AYhether there should be a plea setting up the negligence of the lessee, is'a question which suggests itself, but is not material to be passed on.

AYhat has been said covers also that part of the fifteenth charge bearing on the same point.

Y. Appellant’s counsel insist “that the questions propounded to the witnesses A. N. Lester, J. S. Er-man et al., by plaintiff, as appears from the 8th to the 102d ground, inclusive, of the assignment of errors, were leading, and sought to elicit testimony which was ■incompetent and irrelevant, and that the court erred in overruling defendant’s objection thereto,” and they say “these objections are manifest on the face of the questions,” and they “submit them without argument. There are one hundred and forty-seven assignments of error, of which a half dozen are expressly abandoned in this court. We have perceived no such infractions of the rules invoked as calls upon an appellate court for interference, and we feel that counsel would have pointed out the same if they had detected them.

The authorities hold that where it is shown, as it is in this case, that the fatal lire has been set out from a designated engine, it is admissible to introduce evidence of other fires previously set out by the same engine, but not by any other engine of the defendant company. Ireland vs. Cincinnati, Wabash & Michigan R. Co., 79 Mich., 163; Coale vs. Hannibal & St. J. R. Co., 60 Mo., 227; Brighthope Ry. Co. vs. Rogers, 76 Va., 443, S. C., 8 Am. & Eng. R. R. Cases, 710; Gibbons vs. Winconsin Valley R. Co., 58 Wis., 335, S. C., 13 Am. & Eng R. R. Cases, 469; Slossen vs. B., C. R. & N. R. Co., 60 Iowa, 215; Lanning vs. Chicago, Burlington & Quincy Ry. Co., 68 Iowa, 502; Baltimore & Susquehanna R. Co. vs. Woodruff, 4 Md., 242, 253-4. Former fires by the same engine are admissable as evidence tending to prove its defective condition or construction, or' improper management, •and those put out by other engines are excluded because they are matters collateral to the issue, and not evidence of the imperfect condition or bad management of the particular locomotive. It is objected that evidence violative of this principle was introduced against the objection of defendant. It does not appear that the testimony of Lester was objected to on this ground, or that of York did not relate to the locomotive referred to in the declaration; on the contrary it seems otherwise. The same is true of that part of the direct testimony of Erman so objected to. On the cross examination he was asked what engine it was he saw throwing sparks “aroundthe opera house,” and said he thought it was one numbered 13, which, we may remark, is a different number from that given by the witnesses to the engine which set out the fire on the morning of April 9th, 1888. There does not appear, however, to have been any motion by defendant to strike out the direct testimony alluded to, and there is consequently nothing to found an assignment of error upon. Sill vs. Reese, 47 Cal., 394, 341; Baltimore & Ohio R. Co. vs. Shipley, 39 Md., 251.

YI. Upon the questions of proximate and intervening cause the court gave the jury the following instructions, (numbered here as in the record), at the request of plaintiff; 3rd, (paragraph, from third charge). “That it is for the jury to decide whether the burning of the plaintiff’s property was the direct consequence of lire caused by sparks from'defendant’s engine; that if the jury believe the lire where it originally started was' caused by sparks from the defendant’s locomotive, and that said fire spread, whether from the force of the elements or the inflammable character of the buildings, and burned continuously from building to building to plaintiff’s buildings and destroyed them; and that the plaintiff either had no power to arrest the flames, or was not present, and consequently could not do anything towards arresting the flames, the jury have the right to conclude that the fire set by the defendant’s engine was the proximate cause of the destruction of the plaintiff’s property.” This charge is assigned as the 105th error.

5th. “That if the jury believe from the evidence that the sparks from the defendant’s engine caused the fire and that the spread of the said fire could not have been arrested, or was not occasioned by any new or intervening force, it does not matter whether the buildings belonging to the plaintiff that were destroyed were the first or the tenth. The original fire must be regarded as the proximate cause of the burning of the buildings.” This charge is assigned as the lQ6th error.

(2d instruction given by the court on its own motion:) “Proximate causéis what leads to, and might be expected directly to produce the injury; that is, such a cause as naturally suggests itself to the mind of a prudent man as likely to cause the accident which . produces the damage.” This charge is the 182d error' assigned.

3d charge by the court: “To entitle plaintiff to recover, the defendant’s negligence must be the proximate cause of the accident which produces the damage, without intervening carelessness on the part of the plaintiff, in which event he would become the author of his own misfortune, unless, by ordinary care, he could not have avoided the consequences of defendant’s negligence.” This charge constitutes the 133d error assigned.

The 15th instruction requested by the defendant on the subject was also given as follows : “The court instructs the jury that the immediate or proximate cause of an injury is that which immediately produces it as, its natural consequence.”

Upon the same questions the court below refused to' give the following instructions, numbered as in the record, requested by the defendant: 16th. “The court, further charges the jury that should they believe from the evidence that the negligence of the defendant, caused the origin of the fire on the 9th day of April,. 1888, in the town of Tavares, yet if they further believe from the evidence that the wrongful act or wilful omissLon of duty ou the part of third parties intervened and caused the spread of the flames beyond the natural sequence growing out of the first fire, and thereby caused the flames to consume the property of the plaintiff, the defendant is not liable by reason of the intervention of those causes.” The refusal of the court to give this instruction is assigned as the 122d error.

17th. “ The court further charges the jury that although they may believe from the evidence that the fire originated from sparks emitted from the smoke-stack of defendant’s engine, and that too by the negligence of the defendant, yet if they further believe from the evidence that some new intervening force or agency carried the fire from where it was first started, beyond its natural or proximate sequence, to the property of the plaintiff, whereby it was destroyed, defendant is not liable for the destruction of plaintiff’s property, .and the jury should so find.” The refusal of the court to give this charge is assigned as the 123d error.

- 18th. “The court further instructs the jury, that although they may believe from the evidence that the defendant negligently permitted sparks to escape from the smoke-stack of its engine on the 9 th day of April, 1888, in the town of Tavares, whereby fire was communicated to buildings, and the flames from which were communicated to the property of the plaintiff, which were thereby destroyed, yet if they believe from the evidence, that after the beginning of said fire, and before it reached the property of plaintiff, a fresh wind of additional force arose and carried the ñames to the property of the plaintiff, the defendant is not liable for such destruction, unless the jury further believe from the evidence that such flames would have been communicated to the property of the plaintiff as a natural consequence of the said first fire, and without the inter* vention of the said force.” The refusal of the court to give this charge is assigned as the 124th error.

14th. “The court charges the jury that, although they may believe that the defennant was guilty of negligence in setting out fires from its engines in the town of Tavares on the 9th day of April, 1888, it can only be held liable for the immediate, or proximate, and not the remote causes of the injury resulting therefrom.” The refusal of the court to give which charge is assigned as the 121st error.

After full consideration of the evidence as to whether it furnishes any groundwork for the suppositions premised in these four instructions that were asked and refused to be given, we are unable to see that there was error in such refusal so to give them. And this, for two reasons: 1st, because we fail to discover in the record any modicum of evidence even that would fur-. nish a basis for the premises supposed in the first three of these instructions. As to the sixteenth instruction above, that was asked and refused to be given, the premise upon which the defendant sought therein to construct the defence of intervening cause, is, “ that if the jury believe from, the evidence that the wrongful act or wilful omission of duty on the part of third parties intervened and caused the spread of the flames beyond the natural sequence growing out of the first fire, and thereby caused the flames to consume the property of the plaintiff, the defendant is not liable,” &c., we cannot find in the record even a spark of evidence tending to prove that any act of commission or omission of any third party intervened and caused the spread of the flames beyond the natural sequence of the first fire. So also do we fail to find the evidence in the record upon which to base the premise of the seventeeth instruction asked above and refused to be given. The supposed fact premised therein is: “That some new intervening force or agency carried the fire from where it was first started beyond its natural or proximate sequence to plaintiff’s property and destroyed it,” &c. There is no evidence in the record out of which this statement of fact could reasonably have been deduced.

And so with the 18th instruction above, asked and refused to be given it is premised upon the assumption of the fact that: “A fresh wind of additional force arose and carried the flames to the property of the plaintiff,” &c.; but we fail to see in the record such proof from which this assumption of fact could reasonably have been deduced sufficient to predicate thereon the askings contained in this 18th instruction refused, even if the coming up of a sudden wind could properly be regarded as such an intervening agency as could not reasonably have been expected. In the argument of the cause it was contended with great ingenuity by the counsel presenting this branch of defence, that there was foundation for this charge in that part of the evidence of the plaintiff’s witness, W. S. Blaisdel, wherein he says: “That the smoke was rising up straight, and the wind was sufficient to drive it a little toward the east, the heavier fire.” The contention of the argument being that because the smoke rose straight up, it could be inferred therefrom that when the fire first started there was no wind blowing; but this witness in the same sentence says that the wind was sufficient to drive the smoke and the heavier fire a little to the east. And in another part of his testimony this witnesses says: “The wind was to the south-east, and the water was pretty rough—meaning the water of a lake, on the shore of which the town of Tavares is situated. And it was further contended in the argument that there was food for this 18th instruction in the following piece of testimony of the plaintiff’s witness, J. H. Sears: . “My first notice of the flames was seeing them rush under and between the buildings; then the flames communicated from one building to the adjoining. The wind seemed to freshen, if anythingThe fact was lost sight of in the argument that this same witness in another part of his evidence stated that before any of the buildings caught, while he, with another, were trampling out burning coals of fire near to and along the sidewalk, “the wind was blowing quite fresh.” We believe it to be a philosophic truth, capable at any time of practical demonstration, that every extensive fire so rarifies the air within the radius of its heat, as to create a vacuum into which the denser surrounding air rushes to fill the void so abhorent to nature. The witness Sears does not state whether the “seeming” freshening of the wind, about which he speaks, went to any greater extent in this instance than was the natural consequence of so large a conflagration. We confess our inability, even in the light of the ingenuity displayed in the argument of counsel, tq see anything in these detached parcels of evidence upon which the assumption of fact in these refused instructions can reasonably be predicated, particularly when considered in connection with other parts of the testimony of the same witnesses from whose evidence they are excerpted.

It is well settled that instructions of law must be predicated upon some evidence that has been introduced at the trial; and that a refusal to give instructions that are mere abstract propositions, not based on any color of evidence in the case, affords no ground of exception. Randall vs. Parramore & Smith, 1 Fla., 409; Proctor vs. Hart, 5 Fla., 465; Judge vs. Moore, 9 Fla., 269.

2d* The other or second reason why we- think there was no error in the refusal to give the above? four instructions asked by the defendant, is,, that: we? think, the substance of the propositions of law contained! therein, in so far as they were proper,, are fully- embraced in and covered by the instructions,above- quoted, that were given by the court. The instructions- given? embrace the law as fully as was warranted by the-evidence in the case. The 14th refused instruction- above might properly have been given, as it states the lawr eorreetly and contains no assumption of fact not warranted by the evidence, but its proposition of law is: fully covered in substance by the instructions that were given; and there was, therefore, no error in the discard thereof by the court. Nickels & Gautier vs. Mooring, 16 Fla., 76; Wooten vs. State, 24 Fla., 335.

The proposition of law desired by the first three of the above discarded instructions to be impressed upon the jury, was, that the defendant company was not liable for the destruction of the plaintiff’s property by the fire originated through the defendant’s negligence, if, from the evidence, it appeared that some new independent agency intervened, and that such intervening-agency caused the destruction of plaintiffs property. While, as before stated, we have been unable to find any evidence upon which to build the theory of ‘ ‘ intervening cause” in this case, yet we think the 5th, 2d, 3d and 15th charges above, that were given, instructed the jury as fully as was warranted by the evidence, that the defendant was not liable if plaintiffs loss was the result of any new intervening force or agency; and that it was not liable unless the plaintiff’s loss was the direct, proximate and natural consequence of its negligence. We have carefully considered the great number of authorities cited by all the counsel in their briefs, besides many others suggested by those cited, and we- think that the instructions given upon this feature of the case as above quoted are fully sustained, not only by the numerical strength of the authorities, but by the clearness and force of the reasoning therein, and, to onr minds, by the soundness of the principles therein enunciated. There seems to bo no fixed rule by which accurately to apply the maxim caima próxima, a on remota,, spectcdur, to the circumstances of every individual case; each case necessarily depending, for the applicability of this rule, upon its own peculiar facts. But in Parsons on Contracts, Vcl. 3, p. 180 (7th ed.), we find the clearest and most comprehensive explanation of the maxim, and a formula, for its application that will furnish a test in almost every case, in the following terse language: “Every defendant shall be held liable for all of those consequences which might have been foreseen and expected as the result of his conduct, but not for those which lie could not have foreseen, and was therefore under no moral obligation to take into his consideration.” The same author (Ibid) says, as to the test whether a cause of damage was proximate or remote: “Did the cause alleged produce its effect without another cause intervening, or was it made operative only through and by means of this intervening cause ?’ ’

In Fent vs. T. P. & W. R. W. Co., 59 Ill., 249, a case almost on all fours with the one under consideration, in which a loccnnotive, passing through a village, threw ont great quantities of unusually large cinders, and set on fire a warehouse near the track, from which the plaintiff’ s building was destroyed 200 feet distant; the weather at the time being very dry, and the wind blowing freely. Chief-Justice Lawrence, rendering one of the ablest opinions upon this subject we have seen, in which many authorities are reviewed, says: “We believe there is no other just or reasonable rule than to determine in every instance whether the loss was one which might reasonably have been anticipated from the careless setting of the fire, under all the circumstances surrounding the careless act at the time of its" performance. ’ ’ ‘ ‘If loss has. been caused by the act, and it was, under the circumstancefs, a natural, consequence which any reasonable person could have anticipated, then the act is aproxímate cause, whether the house burned was the first or the tenth, the latter being so situated that its destruction is a consequence reasonably to be anticipated from setting the first on fire.” • •

Whether the injury complained of is the proximate result of the defendant’s negligent act, or whether the injury was too remote, from the original cause and was brought about by some independent intervening force or agency, are questions of fact peculiarly and exclusively within the province of the jury to determine. These propositions, though not in the same propositions, though not in the. same forms of expression here used, are substantially embraced in the instructions above that were given; and the soundness of them as propositions of .law are fully sustained by the following authorities: Penn. R. R. Co. vs. Hope, 80 Pa. St., 373; A. T. & S. F. R. R. Co. v. Bales, 16 Kansas, 252; A. T. & Santa Fe R. R. Co., vs. Stanford, 12 Kansas, 354; Clemens vs. Hans. & St. Jo. R. R. Co., 53 Mo., 366; Peoppers vs. Mo., Kan. & Tex. Ry. Co., 67 Mo., 715; Perry vs. So. Pac. R. R. Co,, 50 Cal., 518; L. N. A. & Chi. Ry. Co. vs. Krimming, 87 Ind., 351; Doggett vs. Rich. & Dan. R. R. Co., 78 N. C., 305; A. & E. R. R. Co. vs. Gantt, 39 Md., 115; Kuhn & Nebb vs. Jewett, Receiver of Erie Ry. Co., 32 N. J, Eq., 647; Murphy vs. Chi. & N. W. Ry. Co., 45 Wis., 222; Rigby vs. Hewett, 5 Exch., 239; Smith vs. London & So. Wes. Ry. Co., Law reports, 5 C. P. Cases, 98; Kellogg vs. Chi. & N. W. Ry. Co., 26 Wis., 223.

The following clause in the 5th instruction asked for by the plaintiff and given: “The original fire must be regarded as the proximate cause of the burning of the building,” is strenuously urged as error. Had this proposition been given as an independent abstract utterance without any explanation or qualification, we have no doubt of its impropriety in a ease like this; but in considering it, reference must be had to that which precedes it in the same charge. When read in connection with the rest of the same charge it is nothing more than the expression of the conclusion to be readied, if the hypothetical proposition put in the preeeeding part of the charge should be found in the affirmative. The objectionable clause might just as well, and possibly with more forceful grammatical construction, have been placed at the beginning of the charge, when it would have read as follows: “The original lire must, be regarded as the proximate cam e of the burning of the buildings if the jury believe from tlievevidence that the sparks from defendant’s engine caused the fire, and that the spread of the said fire could not have been arrested, or was not occasioned by any new or intervening force; it does not matter whether the buildings belonging to the plaintiff that were destroj'ed were the first or the tenth.” By this transposition of sentences without change of verbiage, it at once appears that there was no error in the clause objected to, connected as it was with the preeeeding part of the charge.

All. As to the measure of damages the following instructions, numbered here as in the record, were given to the jury: “21st. That the measure of damn ]-q in cases of this kind is the value of the property r t the time it was destroyed, with interest at the rate oí 8 per cent, per annum; that the jury havé the right -,o arrive at this value from the testimony of the witnesses, of the weight and credibility of which they are file sole judges.” (117th error assigned.)

8th. (Ueneial charge by the court.) “If the jury believe from the evidence that the lire which destroyed phtintiff’ is property was caused as laid down in the declaration, by the negligence of the defendant as a proximate cause, and that no negligence of the plaintiff concurred as contributing to the result, the plaintiff is entitled to recover from the defendant the value of the property destroyed at the time and place of its destruction, which value you must arrive at from the evidence, with eight per cent, per annum interest added from the 9th of April, 1888, to this time.” (188th error assigned.)

Upon the same question the following instructions ts ere asked for by the defence, and refused to be given by the court, numbered here also, as in the record, to-wit: 28th. ’“The court instructs the jury, that should they find from the evidence that the defendant is liable for the burning of plaintiff’s property, in estimating the damages for the property destroyed, they must l e governed by the market value of the property at the time and place it was destroyed.” (Its refusal is assigned as the 128th error.)

29th. “ That it devolves upon the plaintiff to prove by a preponderance of evidence, the market value of the property destroyed.” (Its refusal is assigned as the 129th error.)

30th. “That should the jury find from the evidence, that defendant is liable for the burning of pfaintiffs property, in estimating the damages resulting therefrom, they are confined to the market value of the property destroyed at the time and place of its destruction, and they are not to be governed alone by the cost of the property to the plaintiff; but they may take into consider ation the age of the property destroyed, its deterioration from use, its situation, the quality of its materials, and all other facts given in evidence which bear on the market value of the property at the time and place it was destroyed.” (Its refusal is assigned as the 130th error.)

The law as to what is the “measure of damage” in the abstract, in cases where the property of one has been destroyed, unintentionally, but by the negligence or carelessness of another, where there is no element of wilfulness or maliciousness in the destruction, is well settled to be “just compensation in money for the property destroyed 5 such an amount as will fully restore the loser to the same property status that he oc«upied before the destruction. To arrive at the iamount of such compensation, inquiry, in the absence of malice, is necessarily confined strictly to the ascertainment of the value of the properties destroyed, with ¡such incidents of interest for the retention of such value from the person entitled thereto as may be sanc•tioned by law. The contention of the appellant in urging as error the giving of the above-quoted instructions by the court on this subject, and the refusal to give the above instructions by it asked for, is that the plaintiff in establishing the value of his destroyed properties should have been confined to proof of its market value at the time and place of its destruction ; •and that the admission of evidence as to the original cost of the properties, and as to the depreciation there•of from its original cost by usage or otherwise, was erroneous ; and that it was error to instruct the jury that the plaintiff was entitled, as matter of law, to interest, ¡at the rate fixed by law, upon whatsoever amount of .damages they might find the plaintiff to be entitled to.

Wherever there is a well known or fixed market price for any property, the value of which is in controversy, it is proper in establishing the value to prove such market value; but in order to say of a thing that it has a market value, it is necessary that there shall be a market for such commodity; that is, a demand therefor, an ability, from such demand, to sell the same when a sale thereof is desired. Where, therefore, Hiere is no demand for a thing'—no ability to sell the same—-then it cannot be said to have a market value “at a time when, and at aplace where” there is no market for the same. We think it would have been a very harsh rule in a case like this to have confined the plaintiff' to proof of the market value of the property at the time and place of its destruction, in the absence of proof, that at the time and place of such destruction there was a market for such property. In cases where property is oí a well known kind in general use, having a recognized standard value, it is not proper to circumscribe the proof of such value within the limits of the market demand at the time when, and at the place where, it ivas destroyed. Were the rule contended for to prevail, then the compensation for personal properties coni esse Uy worth thousands of dollars, would be reduced to a pittance in cents if deft roye cl \n > ovle from market to market, in a thinly-settled, barren country where there was no demand, simply because of the accident of “time and place” of its destruction. In actions of this kind where the value of the properties destroyed is the criterion of the amount of damage to be awarded, and the property destroyed has no market value at the place of its destruction, then all such pertinent facts a:i 1 circumstances are admissible in evidence that tend to establish its real and ordinary value at the time of its destruction; such facts as will furnish the jury, who alone determine the amoun% with such pertinent data as will enable them reasonably and intelligently to arrive at a fair valuation ; and to this end the original market cost of the property ; the manner in which it has been used ; its general condition and quality; the percentage of its depreciation since its purchase or erection, from use, damage, age, decay, or otherwise, are all elements of p:co: proper to be sxxbmitted to' the .jury to aid them in ascertaining its value. And to establish valxxe in such cases the opinions of witnesses acquainted with the standard value of such properties, are properly admissible. Sullivan vs. Lear, 23 Fla., 463; L. B. & M. R. R. Co. v. Winslow, 66 Ill., 219; 1 Thompson on Trials, sec. 380; O. & M. R. R. Co. vs. Irwin, 27 Ill., 178; White vs. Herman, 51 Ill., 243; Pennsylvania & N. Y. R. R. Co. vs. Bunnell, 81 Penn. St., 414; Vandine vs. Burpee, 13 Met., 288. Judge Cooley, in Continental Ins. Co. vs. Horton, 28 Mich., 175, in speaking of evidence based on a knowledge of the purchase price of property, says: “The'objection that the daughter of the plaintiff was allowed to testify to the val ue of articles burned, without having been shown to possess the proper knowledge to qualify her to speak as an expert, was not well taken. She testified that she bought á good many of the articles, and was present when others were bought. On this evidence she had some knowledge of values which it was proper she should communicate to the jury. Tne extent of that knowledge, anti its sufficiency as a basis for a verdict, were to be tested by lier examination, and by tlie good sense-anti judgment ftf the jurors.” Coburn vs. Goodall, 72 Cal., 498; Commonwealth vs. Sturdivant, 117 Mass., 122; Derby & Day vs. Gallup, 5 Minn., 119; The Slavers, (Sarah) 2 Wall., 374; Johnson vs. Warden, 3 Watts, 104; Whipple vs. Walpole, 10 N. H., 130; Joy vs. Hopkins, 5 Denio, 84. In Norman vs. Wells, 17 Wend., 136, the court says: “The ordinary and in-general the only legal course is to lay such facts before"; fue jury as have a bearing on the question of damages,, and leave them to fix the amount. They, are the only proper judges. They are impartial, and capable of ente-ring into these ordinary matters.” In Clark vs. Baird, 9 N. Y,. 183, Johnson, Judge, delivering the opinion, says: “Upon this ground, as well as upon that of superior convenience and the constant reception of such testimony upon trials without objection, a tacit but strong proof of its propriety, it must be deemed established that, upon a question of value, the opinion of a Avitness avIo has snu the thing in q odian a.i l acquainted with the value of similar things, is not incompetent to be submitted to the jury. Hamer vs. Hathaway, 33 Cal., 117; Rogers vs. Mechanics Ins. Co., 1 Story, 303; Blydenburg & Burns vs. Welsh, 1 Baldwin (U. S. Ct. Ct.), 331; Whitbeck vs. New York Central R. R. Co., 36 Barb. (N. Y.), 644; Luse vs. Jones, 39 N. J. (Law), (10 Vroom,) 707; Brown & Otto vs. Werner, 40 Md., 15; Allison vs. Chandler, 11 Mich. 542; F. E. & M. R. R. Co. vs. Marley, 25 Neb., 133; Browne vs. Moore, 32 Mich., 254. We think the evidence as to values admitted in this case were fully confined within the limits of the principles announced, an 1 that there was no error in the admission of such testimony, nor in the giving of the instructions ’above-quoted upon the question of the measure of damage <; nor in the refusal to give the above quoted instruction i asked for by the appellant.

It is also contended by appellant that the sole pro >' of value, excepting the evidence of Randolph as to fcu >. rental payable by him, is by or upon the theory of proving cost and then the depreciation, and making -this the test of value.

Mr. Alexander Uf. Clair Abrams, a witness for plaintiff, was permitted, without objection from defendant, to describe minutely the hotel, which was originally built in 1882, and enlarged, in 188(5, to a, four story building with tower, and the kind and quality of the timber and materials of which it was constructed, furnished, plastered and painted. lie says when the building was first put up he was present acting as the’ superintendent of it almost every day, and then owned a saw mill at Tavares, at which the lumber put into the building was manufactured from the best logs. He also described with fullness the other buildings, and the furniture and other personal property belonging to the plaintiff company involved i:i tills suit. He was then asked what it cost to construct the hotel, and defendant objected on the ground that it was “not the proper way to prove the true-measure of damages, the true measure being the market value of the property at the time and place of its. destruction;” and the objection was overruled and exception taken. At this juncture it was stated to the court on behalf of plaintiff that this evidence of cost was not offered as evidence of the value, and that the plaintiff admitted that the value of the property at the time of the fire ivas the true measure of damage, and that this statement- of cost was put in for the purpose of enabling plaintiff to show by subsequent testimony what the value was at the time of the fire. The witness then testified that the hotel building with tower and outbuildings, and its appurtenances cost over 842,000. That when the first building was put up the cost of building material and labor and the freights were much higher than when the extension was made, and that lie had a. personal knowledge of the cost of" Timber, as lie was for five years actually engaged in and was at the time in the saw mill business; and that when the extension was made the cost of labor and material vas about the same as when the fire look place; that the condition of the building was perfect; that in 188G when the extension was made he had the-original building examined, helped to examine it, and found everything in perfect condition; that at the time of the fire the paint was faded; but the walls, were perfect and unmarked, and the ceiling in good condition and the woodwork .all as sound apparently as the day it was built; that he had constructed thirty or forty buildings since he had been in Florida, they ranging from a little shanty, to a hotel. Here th i plaintiffs attorney asked him what he estimated the value of the hotel to have been on the day of the fire. and defendant objected, because it sought to elicit an opinion from the witness, who had not so far properly qualified as an expert, or shown himself legally qualified and c ompetent to give an opinion. The question being withdi awn he stated that he was familiar with the construction of buildings, and that there was no arbitrary rule governing the deterioration of any building, and was thoroughly acquainted with the hotel at the tiirie of its burning, and had been ever since its const ruction. Here being again asked what the value of the hotel was on the day of the fire, he, after objection, no ground being stated, and exception, by defendant, to the ruling of the court, replied that ho estimated the value of the hotel with the outbuilding; on the day of the fire at $3o,000, stating again that the building on that day was in perfect condition ex: cept painting on three sides; the flooring and interior painting, frame and everything being in perfect condition; and that he arrived at his estimate of the value at the time from his personal knowledge of the prices of materials and labor in April, 1888, as compared with prices of 'labor and material in the previous years in which the building was constructed; that in 1882 when the building was put up, lumber was considerably higher in price than in 1886 when he enlarged it; rough lumber was “from $15 up,” dressed lumber in the same proportion. Tn 1886 rough lumber had fallen to $12 delivered in Tavares; in 1888 mill lumber was $10, selected lumber, not all heart, $12; all heart free from knots or windshakes, in 1888, could not have been purchased for less than $15 or $16 a thousand delivered in Tavares; that he spoke particularly of the. first building, where he selected and delivered nearly all the lumber put in it, superintending the loading oí the wagons and hauling to the building, and thinks he can safely say that there was not one stick of timber put in the first building that had a windshake or a knot in it; all was soft heart pine lumber; that they had probably a million feet to select from in the yard; that the hardware in the building was all purchased by him personally from different parties in New York, Jacksonville and elsewhere, and that he was acting superintendent of the construction of the little building and the enlargement of it.

He also testified, subject to the objection that it was improper and incompetent, that he had the store at the corner of N ew Hampshire avenue constructed, and was there nearly every day, and his office was on the second floor, and personally made repeated examinations of the building; as he did all his other buildings in Tavares, and it with its annex cost $4,000; several hundred dollars being spent for certain decorations which had been taken away before the fire; and the bxdlding, with its annex, he, from his knowledge of the price of material and labor in April, 1888, estimates at the value of $8,500; that the building east of this one was constructed by witness, the newspaper office was on its second floor, and the paper was owned and published by him for several years, and he was almost daily in the newspaper office and examined the building frequently, and that it cost $2,000, a.nd witness was familiar with its value on the day of the fire, and estimates it at $1,400; that the stable, which he says he constructed and helped to do the carpenter work on, was built in 1885, and cost about $1,500, and he estimates the value of the building, with which he says he was familiar, at about $1,000; that he had the cottage on Ruby street constructed, and it had cost about $600 or $700 at the time of the fire, and he estimated its value then at about $400; that lie had .a cottage on east Ruby street built, and was frequently in it, and it cost §400 or $500, and he was familiar with its value on the day of the fire, and estimates it at about $200; that he was acquainted with the value of the three remaining cottages, having had them constructed under his supervision; that they cost about $350 each, and he estimates their, value, with' which he is familial', at about $200 each.

That in estimating the value of the hotel at the time of the fire he makes allowance for the deterioration of the building ; that the deterioration of a building of that character—a wooden building of yellow pine—depends largely on the quality of timber put into it. If it is clear heart lumber free from windskakes or knots, and painted over and protected from the weather, it is very difficult to say when deterioration begins. If it is what is called mill run lumber—that is a whole log taken through with portions of sap in each board—deterioration will begin in two or three years, at times earlier; but clear heart lumber, such as wTas put into that building, he does not believe there was a deterioration of 5 per cent, in ten years on the building; that the roof of the building was covered in 1886 with new tin and with three coats of paint on the tin; that there could not have been any deterioration in two years; that he made a very large allowance for'deterioration in the other buildings, as the material was not so select as that put in the hotel.

He also stated, under objection, that it was “improper, &c.,” the cost of the furniture and outfit of the hotel was nearly $15,000, gross, or $14,600 or $14,700 exclusive of the freight. He gives the cost of a great many, if not all, of the separate things composing this outfit. He states that he was thoroughly acquainted with this property on the day of the fire, and was familiar with its value at that time, having bought and sold furniture for nearly five years in Tavares, and having stayed in the hotel neai-ly all the time up to a short time before its destruction, and had, several days before the fire, taken a Mr. Roost over the entire building, with the view of renting it to him for the ensuing year, and therefore examined everything but a few days before the fire. The furniture, he says, was in complete condition, there was but one bedstead in the entire furniture that was hurt; that was on the fourth floor. Some Englishmen got on a frolic and broke it where those locks go into the sides. That was the only thing that was not in absolute perfect condition. . ‘ T estimate the value of the entire outfit on the day of the fire at $10,000. I delt in furniture for four years, and know what the juice is, and I will state I cordd have sold the furniture in my store for over $10,000.

lie states that the counters, shelving, etc., in the first store cost $1,150 or $1,200, and shows his familiarity with them. lie does not state their value; gives the cost of the life jueservers, maj)s and harness as $2,000, and their value at the time of the fire at $1,000; that he jmrcliased the entire outfit of jninting material in Cincinnati, and published and edited the Tavares Herald for several years; that it cost $1,600 there, and j>art of the furniture for it he had made at Tavares at a cost of about $100, and lie estimates the value of this property on the day of the lire at $1,200; a large amount of the type had never been used.

W. P. Floyd, a carpenter, who says he superintended the work of enlarging the hotel, he having had charge of the carpenter and mason work, testifies that he made an examination of the original building before enlarging it, and found the sills sound and the plastering good, and says all heart jrine was put in the new building as near as he could get it, the lumber being selected and the framing being sawed out esjiecially for it. He describes the building and material fully, saying that between $3,600 and $3,700 were paid for carpenter’s work alone; that very little repair had to be made on the building up to the time of the fire, and that he had charge of the plaintiff company’s work up to that time. No repairs outside of a pane of glass, or some little thing about the water closet, or something-like that. The building w-as in good condition at the time of the fire. He also describes the counters and shelving of the corner store, -which counters and shelves he regards as being elaborate, and a good solid job, and in good condition on the day of tlie fire so far as he knew, wdiich counters and shelves' he estimates, from his practical knowledge of building them, as worth $3 to $4 a running foot on the day of the fire, and that other counters of not so fine a quality, were worth $2 per foot. He did his trading in the store, and was there “every day or evening-.”

J. H. Sears, a practical carpenter and builder of 44 years experience, and who has done building in Florida for about two years before the fire, and at Tavares, and is familiar with the price of lumber, building material and labor, upon being given specifications, diagrams and photograph as descriptive of the hotel, was asked to state what it would have cost the plaintiff to have such a building constructed on the 9th day of April, 1888, the day of the fire.' The question was objected to as not stating a proper hypothetical case to be submitted to the jury under the facts of the case at bar, and as too indefinite, and offering too wide a latitude, and not confining tlie estimate of the witness to a definite building, and as misleading, incompetent and irrelevant; but the objection was overruled and exception taken. His reply was $35,637.17, including 15 per cent, for builders’ commission, or $31,207.82, exclusive of such commissions; that he lived in the building more than a year, and that the character of the construction was very fine and good ; had occasion to notice the character of the construction, as a builder he generally looked out for such things, had taken no particular notice of the plastering on the walls, but knows it was a good job, and noticed that in burning down the boarding had burned off the frame-work leaving the skeleton, the walls standing and the frame-work burning, and it fell piece by piece, showing it was thoroughly put up and solidly constructed; that he was in the building at times other than when he lived in it, had no other place to sit around except on the piazza in the evenings; that he spent much time there, went inside, occupied three different rooms when he lived there, and had been over the building or through it, except the upper story which he was never in, and “has sufficient personal knowledge of the btiilding to be able to give an estimate of its value on the 9th of April, 1888. That the condition of it on the day of the fire and prior was about perfect. In reply to the question now put to him as to his estimate of the value of the brulding on the day of the fire, he replied: “Ihave been used to adjust fire losses north, and am pretty well posted. That building was worth $35,637.17 on that day of the lire.” He, in reply to a subsequent inquiry, said he would not take the contract to put up the building on that day for $33,000. He also stated that it would have cost $3,000 to $4,000 to construct the corner store building on the day of the fire, and that from his knowledge of its condition if was then well worth $2,600, and that the second store, with the condition of which he was well acquainted at the time of the fire, it being good, was worth $3,300.

AY. A. Miller, a contractor for buildings of all-kinds, who has been engaged in the business for five years, and lives at Sanford, Florida, and was familiar with the price of material and labor in 1838, and at the time of the fire, stated in answer to a question like the first given above as propounded to Sears, the same objection and ruling and exception being made, said it would have cost $30,000, and that there -would have been no deterioration in such a building in two years.

(x. E. Pearce, a contractor for thirty years, and for eight years in South Florida, and familiar with the cost of labor and building material in April, 1888, replied to the same question, under the same objection, ruling and exception, that it would have cost $27,964.20; that he had a personal knowledge of the price of lumber and woodwork, and some acquaintance with' the building, had been in it, but his lmowlege of the building did not, aid him in making- the estimates; that there would have been 5 per cent, depreciation in the building for the two years in that locality, and supposing one-third of it had been constructed in 1882, that one-third would have depreciated over 10 per cent., but not if it had been thoroughly repaired in 1886.

W. T. Cotter, a witness for defendant, carpenter and builder of all kinds for 25 years, and has built all classes of buildings in Florida, in answering the same question, put the estimate at $18,000, and says he would have built it for this price; and that the corner store could have been built for $2,500, correcting a previous estimate of $4,000 ; and that the second store could have been built for $1,000. He states the depreciation' of buildings in Florida to be from 5 to 7 per cent.

J. K. Barrett, a witness for plaintiff, who wms, in charge of the hotel from December, 1885, to April 20th, 1886,- it having been refitted after he took charge, and has been in the hotel business twenty years, describes the furniture and outfit, and estimates its value as of that time at from $7,000 to $7,500.

E. S. Newell, a witness for defendant, and steward in the hotel from December, 1887, to February 2-2d, 1888, considers $3,000 a very liberal estimate of value, lie says furniture in hotels when the lease changes at short periods depreciates from 20 to 25 per cent.

D. S. Randolph, the lessee of the hotel from December, 1887, up to the time of the fire, says the lease was at $100 per month, he to put in all repairs; that when he rented, Mr. St. Clair Abrams said the house was in such bad condition he thought of shutting it up, and would not put in any repairs. His estimate of the value of the furniture is $2,575, and says the annual depreciation of furniture in hotels is 20 to 25 per cent. a,nd upwards ; that the linen depreciates 50 per cent.

There is an irreconcilable conflict between Newell and Randolph on the one side, and Mr. St. Clair Abrams on the other, as to the quantity, quality and condition of the furniture in the hotel, but it is sufficient, without mentioning particular points in which other witnesses sustain the last named witness, to say that the jury has settled this. Mr. St. Clair Abrams also states that the terms of the lease had been changed to a percentage on the gross income over a certain sum, which is denied by Randolph. Randolph also stated that a great many panes of window glass were out, and that the house leaked.

The amount which it would have cost to erect buildings of the same kind on the day of the fire, less a proper deduction for deterioration, is not the proper measure of damages in a case of this kind. In Burke vs. L. & N. R. R. Co., 7 Heiskell, 451, where the plaintiff’s dwelling and contents had been destroyed by fire communicated by sparks from the railroad company’s locomotive, the jury were instructed that the measure of damages would be just what it would cost in cash at the time and place of the burning to replace the house and each article consumed in it. This was held to be inaccurate, and calculated to produce confusion in the estimate of damages, and the better instruction to be that the measure of damages would be the value of the property destroyed at the time and place of the destruction. In L. B. & M. R. Co. vs. Winslow, 66 Ill., 219, a case of condemnation of private property for railroad purposes, the company having taken the Emd and destroyed the buildings upon it, it is said: For all the property of appellees taken by the corporation for their use, just compensation must be made to the owners. If a building stands in the way of a road which it is necessary to destroy, its value must be paid by the corporation, and the jury in estimating its value will take into consideration not the value of the materials composing the building, but the value of the building as such.

The value of the property at the time and place of the fire, is the question the j ury is to pass upon. This court charged and the plaintiff admitted. Market value is'what-a thing will sell for, P. & N. Y. R. Co. vs. Bunnell, 81 Penn., St., 414. To make a market, however, there must be buying and selling. Blydenburgh vs. Welch, 1 Baldwin, (U. S. Ct. Ct., 340. Property may have a value for which the owner may recover if it be destroyed, although it have no market value. A. T. & S. F. R. Co, vs. Stanford, 12 Kan., 354, 380. “Suppose,” asks the court in the case just cited, “a rod of railway track, or a shade tree, or a fresco painting on the walls or ceiling of a house, or a bushel of corn on the western plains, should be destroyed; could there be no recovery for these articles simply because there might be no actual market value for the same? To fix the market value of a thing, it seems to us that there must be a selling of things of the same kind. If there had ever been a sale of a hotel, or of any other building in Tavares, we are not informed, .and we have no judicial knowledge, nor does the record inform us, that hotels have a market value there. Yet, though there is no market value or standard value, the plaintiff should not be allowed more than the property destroyed by lire on the 9th of April, 1888, was reasonably worth in Tavares. To do this it is proper to invoke the aid of all facts calculated to show its value, and we are unable to perceive that the Circuit Judge erred in admitting the evidence of the cost of replacing the building on the day of the fire. It was a fact tending to show, and to be considered with others, by the jury in determining what amount of money would put the plaintiff in the position in which he was at the time. If there were any other facts incident to the condition of Tavares, considered in a business or other point of view, calculated to affect the value of this or any other property there, and which would qualify or outweigh the item of the cost of restitution, and such facts do not appear in the record, we are not responsible. It must be assumed there were none other existing. By saying the testimony was admissable, we do not say what weight should be given it, nor do we come into conflict with the Tennessee and Illinois cases last mentioned. The evident meaning of those cases is, that the cost of restitution or of the materials is not the measure of dam .ages governing the jury, and not that such facts can never be considered in arriving at the true value or measure of damages. If an article has no market value, its value may be shown by proof of such elements or facts affecting the question, as exist. Recourse may be had to the items, and its utility and use. 2 Sutherland on Damages, 378. In Luse vs. Jones, 39 N. J. (Law), 707, the plaintiff was permitted to' show cost of a bedstead as tending to prove its value. This cost was the price at which a regular dealer in such articles had sold it when new in the ordinary course of trade. “Asale so made,” said the court, “was evidence of the market value of the thing when new, and the value of such goods when worn can scarcely be ascertained except by reference to the former price and the extent of the depreciation. Of course the cost alone would hot be a just criterion of the j>resent value, but it ivould constitute one element in such criterion, and the attention of the jury was directed to the importance it deserved to have. See also Sullivan vs. Lear, 23 Fla., 463, 474. In Whipple vs. Walpole, 10 N. H., 130, it was held it was admissable to prove what horses like those lost or injured cost at a town near the j>lace where the loss occurred. Upon the same principle, and for even stronger reasons, we think that the cost of restitution at the time of the destruction of the building was an element which might be considered by the jury with others in ascertaining value.

The suggestion of appellant’s brief that what a building is used for, whether it was a home or a business house, what income was derivable from it, where was it located, what its surroundings, enter into the consideration of value, are as to the hotel, met by the evidence in this case, and except as to that of income, the same may be said of the other buildings. Whether or not any of the buildings were profitable as investments at the time of the fire, the defendant could, if such evidence was admissable, have elicited on cross-examination of plaintiff’s witnesses, or by independent testimony, as might have been proper under the circumstances, and the same may be said also of the suggestion as to the “prospects” of these properties and of the value of other projoerty in the vicinity, and of the land after the houses were burned. “What were the whole premises worth in the market as they stood at the time of the fire,” is, if, we substitute the words “at Tavares,” for “in the market,” the question really submitted to the jury for decision.

The question of value in cases where, as here, there is no market value, is one peculiarly for the jury. Nothing has been permitted to go to this jury which it was improper for them to consider in coming to a conclusion as to the value of the several kinds of property involved. It cannot be assumed that there were other persons who would have testified to facts or circumstances other than those shown by the record, of a character to influence the jurors to a lower estimate of the values, or have themselves placed a less value on the property. The jury has returned a verdict according to its judgment, and it is undeniable that they have not given the plaintiff the benefit of the several values insisted upon by the plaintiff’s chief witness, but it is apparent that after considering all the facts and circumstances, and testimony, the jury has said what they deemed the property to be worth, falling considerably below the aggregate of that witness’ opinion. There was, in our judgment, sufficient evidence to sustain the verdict, and we fail to find in the brief any contention that the verdict should be reversed as being excessive. If there were such contention we could not sustain it.

VIII. Upon the question of the'allowance of interest a scatter of right, upon the amount of damages found by the jury, from the' date of the destruction of the property in cases like this where the damages sued for are unliquidated, the following authorities, with others that we have examined, hold in effect, “that the jury may, at their discretion, allow and include interest in their verdict as damages, but not as interest eo nomine: 2 Sedgwick on Measure and Damages, p. 190; authorities cited in note to Shelleck vs. French, 6 Am. Dec., 197; Black vs. C. & A. R. R. & Trans. Co., 45 Barb. (N. Y.), 40; Central Railroad vs. Sears, 66 Ga., 499; Lincoln vs. Claffin, 7 Wall., 132; Garrett vs. Chicago & N. W. Ry. Co., 36 Iowa, 121; Brady vs. Wilcoxen, 44 Call., 239. In all these authorities no other reason is given for this rule than that it has been so held in other cases that have gone before them ; except that in a few cases it is put upon the ground that where property is wrongfully taken and withheld, the defendant gets the benefit of its use during the detention, and is required to pay interest as compensation for such use, ■when in cases of property wrongfully destroyed the defendant derives no benefit therefrom. The answer to this theory is, that in cases of this kind for the negligent and wrongful destruction of property the issue as to the amount of the compensation does not depend upon benefits that accrued therefrom to the defendant whose negligent act brought about the destruction; but the issue rests wholly upon the question as to what is the sum of the damage to the party whose property has been destroyed. Neither do wre think this theory can properly be applied even in cases of trespass and trover. Interest on the value of the property taken in those cases cannot correctly be said to be allowed to the plaintiff ‘ ‘because the defendant derives benefit from the use of the property,” but is allowed to the plaintiff to compensate him for his deprivation of its use during the detention thereof. Suppose in this case the furniture in this hotel, instead of being destroyed, ‘had been wrongfully taken by the defendant, and had been carried away and disposed of at once by gift to' other parties, or had been destroyed by fire or otherwise after the taking, so that it really derived no benefit therefrom; in an action for the recovery of its value interest under the modern authorities would be recoverable as matter of legal right; but in such case would the subsequent gift or destruction thereof and absence of beneficial use to the defendant have any effect upon the right to the recovery of interest. The answer in the negative is self-evident.

In Ancrum vs. Slone, 2 Spears (So. Ca.), 594, in which this question of interest is discussed at greater length than in any case we have examined holding this view, Frost Judge, says: “To the argument, if interest may be allowed in the aggregate damages found by a verdict, why ■ may it not be allowed eo nomine ? The reply is, the law does not inquire into the particulars of a verdict for damages, and in some cases interest furnishes a just and convenient measure for the jury. But it is a stated compensation for the use of money, and as it cannot be separated, even in idea, from debt, seems not properly incident to uncertain and contingent damages. The distinction is ad- . mitted to be one of form, depending on the form and cause of action. It is necessary and obligatory by law, to maintain the forms of action, with the distinctive rules which govern them. If this argument is not allowed to be decisive, there is no reason why assumpsit should not be brought on a sealed instrument, or one form of action serve alike for all contracts as well as torts. Besides, in actions sounding in damages, the liability, amount and time, necessary incidents for the allowance of interest, are not ascertained and determined until the verdict is rendered. Interest being stated damages on pecuniary liabilities, to find a sum with interest in an action sounding in damages, is to allow damages on damages, which is an incongruity.” The' pith of the argument here is, that the distinction grows out of and depends upon the “form” of action, and that it is necessary to maintain the “forms of action” with the distinctive rules which govern them. We cannot give our consent, that matters of substance founded upon right shall be thus made subservient to the maintenance of the mere forms of action; or that money which rightfully belongs to a party shall be given when called by the name “damages,” and witheld if chanced to be called “interest.” In Parrott vs. Knickerbocker Ice Co., 46 N. Y., 361, the court says: “In cases of trover, replevin and trespass, interest on the value of property unlawfully taken, or converted, is allowed by way of damages, for the purpose of complete indemnity of the party injured, and it is difficult to see why on the same principle, interest on the value of property lost or destroyed; by the wrongful or negligent act of another, may not be included in the damages.” In the case of Ancrum vs. Slone, supra, the court says: “It is necessary to the allowance and estimate of interest to ascertain the sum due and the time when payable.5 ’ At what time does the liability for the negligent destruction of property attach to the wrongdoer, if it shall be found that all things concur to set such liability in motion ? It has been sometimes contended that such liability attaches only upon the finding of the jury. We do not think so. The verdict of the jury simply declares the liability and fixes the amount. The law attaches Ohs liability at the time of the destruction if all the circumstances attendant thereon concur hi stamping the case with the legal elements of liability. As before seen, the measure of the loser’s damage is the nahie óf his property destroyed at the time of its destruction. Why at the time of destruction ? Be cause it is at that time that the destroyer becomes liable for such value. The loser, before and at the time of such destruction, was entitled to his property, and the beneficial use of it, and instantly, upon such destruction, becomes under the law entitled to its value in money at the hands of the wrongdoer, and can sue instantly for such value. Because, through the law’s delays, no opportunity is afforded to have the amount of that value declared by a j ury for a year, perhaps several years, is-it right that the loser shall during all that time be kept out of both his property, its use, and its value without some remuneration for the retention by the wrongdoer of such value? Upon every principle of right we cannot think so. The theory of the measure of liability in such cases is just compensation. We cannot see either justice or completeness of the compensation dispensed. under a rule that declares a party who wrongfully destroys another’s property to be liable at the time of such destruction for the "value thereof, but that permits the wrongdoer to withhold such value for years without some compensation for such retention. We cannot appreciate the force of the argument of the learned judge in Ancrum vs. Slone, supra, “that to allow interest in an action for damages, would be to allow damages on damages.” It is true, that in a certain sense it is an allowance of damages on damages, (interest being a species of damages,) but it is not an allowance of damage on damage, for the same cause of damage. In the one case the principle sum—the value of the property destroyed—is awarded as the damage for the wrongful destruction ; in the other, interest is allowed as the damage for the wrongful detention of such value. In Chapman vs. Chicago & N. W. Ry. Co., 26 Wis., 304, Chief-Justice Dixon says: “In'trespass, trover or replevin for the same property, taken or converted by the defendants, such would have been the legal rule of damages ; or rather the value with interest from the time of the taking or conversion. Why should not the same rule prevail in this action ? We are at a loss to assign any good reason for the destruction, if it can be said that it exists, or if it can be said to be in the discretion of the jury to give interest by way of damages in this case, whilst in the others they must give it as a matter of strict legal right. We say we can see no good reason for the discrimination. The object of the rule, or of any rule of damages in any of the cases, is to give just and full com.pensation for losses actually sustained.

It is obvious, regard being liad to such compensation, which constitutes the foundation of the rule, that the giving of interest is as essential in this case as in any of the others. It is immaterial to the party who has lost his property, whether it has been taken and converted, or negligently destroyed by the other. His loss is the same in either'case, and in either case he should be entitled to the same compensation.” This view of the law accords fully with ours, and seems to be sustained also by the following authorities: 1 Sutherland on Damages, 174; F. E. & M. V. R. R. Co. vs. Marley, 25 Neb., 138; Mote vs. Chicago & N. W. R. R. Co., 27 Iowa, 22; Sayre vs. Hewes, 32 N. J. (Eq.), 652; Derby vs. Day & Callup, 5 Minn., 119. In the case of Milton vs. Blackshear, 8 Fla., 161, decided in 1858, relied upon to establish a contrary view, the question under discussion was not involved. The action in that case was upon an account for lumber sold and delivered ; and there is nothing in the decision that conflcts with the views here expressed.. Neither do we find anything in our statute that is inconsistent therewith. Our statute, sec. 1, p. 585, McClellan’s Digest, (Chapter 1483, Laws of 1866,) provides as follows : “The legal rate of interest to be charged on all notes, money or other liability of whatsoever character, and upon all judgments, shall be eight per centum.” In view of the charges given, we must assume that they were heeded by the jury, and that they included interest in their verdict from the date of the fire to the day of their finding upon the amount found by them to be the value of the property destroyed, which value by arithematical rules we find to be in round numbers forty-five thousand and some hundred dollars, the remainder of the verdict of $52,909.03 represents interest found by the jury for the period of two years and seventeen days intervening between the fire and the verdict. The established measure of damage in such cases being complete compensation, we feel that it would be doing a positive wrong to the plaintiff were we, because of these instructions on the queestion, to order either a new trial or a remittittur of this sum to which, upon every principle of right, the plaintiff is justly entitled. The errors assigned for giving the above quoted 21st and 8th instructions on the subject of interest and measure of damage, and for the refusal to give the above quoted 28th, 29th and 30th instructions asked for, cannot be sustained.

IX. It is claimed that the court erred in giving to the jury the 7th instructions reqested by the appellees, which is as follows : “That if the jury believe from the evidence that the defendant, or the defendant’s agent at Tavares, had knowledge of the condition of the streets, and of the sidewalks, and had knowledge that there was trash on or under the sidewalks, and that the sidewalks were of inflammable material, such knowledge can be considered by the jury in connection with the question of negligence in permitting the emission of sparks in large and dangerous quantities and of unusual size from the locomotive, if the jury believe from the evidence that such sparks were emitted.” (Assigned as the 108th error.) The effect of this charge, though framed with cautious ingenuity, was to say to the jury: “That in considering the question of negligence on the part of the defendant company, the knowledge of the company’s agent at Tavares of the inflammable condition of the sidewalks, could be regarded as the knowledge of the defendant company, and that such knowledge might be regarded as an element of negligence. ” It is now no longer an open question, but well settled, that notice to an agent, to be binding upon his principal, must be concerning some fact within the scope of. the jpowers and duties of the agent as such. To charge the principal with the knowledge of his agent, it must be concerning; some fact connected with the particular duties that the agent is authorized to perform for .the principal. Story on Agency, sec. 140; Hiern vs. Mill, 13 Vesey, Jr., 114; 1 Parsons on Contracts, 77, and authorities cited in note x; 1 Rorer on Railroads, 669; Fulton Bank vs. N. Y. & S. Canal Co., 4 Paige, 126; Congar vs. Chicago & N. W. Ry. Co., 24 Wis., 157; Bank vs. Davis, 2 Hill, 451; Winchester & Lemmon vs. Baltimore & S. R. R. Co., 4 Md., 231; Bank of St. Marys vs. Munford & Tyson, 6 Ga., 44.

We are not satisfied, in the absence of some definite evidence or better knowledge than we have, assuming that such knowledge can be invoked, as to the extent of the duties of a local or station agent, that notice to this agent was in law notice to the company, and therefore to the engineer managing the train, and though the charge may be erroneous, we do not think it could have had any material effect on the conclusion of the jury as to the question of negligence.

The question of negligence in this case, as shown by the discussion of it in the second .paragraph of this opinion, resolved itself into one of the relative veracity of the witnesses of the plaintiff, and those of the defendant, upon the issue of the emission of sparks as claimed by the plaintiff, and the presence of a proper spark-arrester and its proper management as claimed by tlie defendant. The jury have shown by their verdict that they believed the testimony given by plaintiff’s witnesses, as to the escape of the large quantities of sparks, or coals, and cinders oí extraordinary size, and did not believe the defendant’s contention. This conclusion results necessarily from the verdict, because a verdict finding negligence, as this impliedly does, could not have been reached and cannot be maintained on any other theory. The escape of such sparks was conclusive evidence that there was either not a proper spark-arrester, or that it was not- properly managed, and the absence of such an arrester, or of proper management, established, of itself, negligence in the defendant. As the jury believed this testimony, it is altogether unreasonable to say that the charge under consideration could have influenced the verdict. Negligence was necessarily made- out without its supporting influence, and could not have been made out without the evidence referred to and the belief thereof. The above testimony, believed as it was, precluded entirely any other verdict on the question of negligence than the one reached; and if the admission of the testimony on which the charge was based, which testimony showed that the local agent had knowledge as to the trash and sidewalks, had been excepted to, and the question before us was the propriety of its admission, we should be compelled to say that it was error without injury, and onr conclnsion as to»the charge is the same. The jury could not have found the verdict without believing plaintiff’s witnesses, yet this charge could have had no effect in the formation of this belief, and this being-so; it had necessarily no effect upon the finding of negligence, the only point to which it related. Knowledge by the company, or the engineer managing the locomotive, of the alleged condition of the streets and sidewalks, might, in the minds of the jury, have aggravated the degree of negligence to wilful injury, but the escape of the sparks of the size and in the quantity indicated, made a case of negligence under the circumstances existing, independent of any consideration by the jury of knowledge or ignorance of the company or its agent.

X. The 118th error assigned is the giving of the 14th charge requested by plaintiff below, as follows: ‘ ‘That in cases of this kind, the jury have the right to infer negligence from the circumstances of the case; that circumstantial evidence alone would authorize the finding of negligence, and that the jury have the right to presume from the escape of sparks in large and dangerous quantities, and of unusual size, from the smokestack of the locomotive engine, and at different times from this same engine, that the engine either did not have the most approved appliances to prevent their escape, or that the said appliances were not properly adjusted so as to prevent their escape, or that the engine was not handled ór operated in a proper manner and with due care and vigilance.” The merits oí the proposition oí law involved in this instruction have already been fully discussed in another part of this opinion, wherein it is held that the testimony of the plaintiff s witnesses to the effect that sparks and burning cinders of unusual size and in unusual quantities, were in fact emitted from the defendant’s engine, .as against the evidence of the defendant’s witnesses that the engine was in perfect condition and skillfully handled, presented a simple question of veracity between the opposing witnesses, that was for the jury alone to settle; and, from what has. been said, we cannot’see that this charge is obnoxious to the law upon the subject, but on the contrary, enunciates the principle correctly. TVe cannot discover therein any enroachment upon the province of the jury to deal with the facts. It instructs the jury in effect that from certain circumstances mentioned, they can, under the law, arrive at a mentioned result. It does not trench upon the facts by the assertion that any mentioned fact or circumstanee does exist, or has been established; nor does it undertake to assert that the result therein mentioned has been reached, or should be established by the jury. We think the charge is fully sustained by the cases cited supra, Burke vs. L. & N. R. R. Co., and A. T. & S. F. R. R. Co. vs. Bales.

XI. The refusal of the court to permit defendant’s witness, L. L. Dupont, to be interrogated as to what he heard other parties at the fire say in reference to its origin, is iilso relied upon as error. It seems that the witness Dupont was in Tavares on the morning of the fire, and that on hearing the alarm of fire, he went to the scene of its origin at Lester’s saloon and there heard, but did not see for himself, how it originated. We think the court properly excluded any detail of what others may have said in this witness’ presence as to how the lire originated.

The origin of the lire was an independent, isolated fact, standing out by itself alone, that was necessary to be proven by direct, independent facts or circumstances, and a knowledge of such fact is possessed, by any person, such person should have been produced and his knowledge thereof detailed under the sanctity of an oath as a witness on the stand. To have permitted the witness Dupont to state what he heard some one say was the origin of the fire would have been to admit hearsay evidence pure and simple. Green-leaf, sec. 108, vol. 1, in discussing the exceptional cases wherein hearsay evidence is sometimes permitted, says: “The principal points of attention are, whether the circumstances and declarations offered in proof were cotemporaneous with the main fact under consideration, and whether they were so connected with it as to illustrate its character.” The attempt here was not to introduce declarations or circumstanoes connected with, or a part of, or that illustrated the character of the main fact necessary to be established, but it was an effort to prove the main fact itself by hearsay, which fact, as before stated, stood independent and alone. The object in having lids witness to testify that he heard some one at the tire say how it originated, was evidently for the purpose of establishing the fact that the lire's origin was other than sparks from defendant's looomothe. Suppose the witness had been allowed to so testify, what would it have proved? Clearly it would Lave proven nothing more than the bare fact that he did so7iear\ but this certainly could not be claimed as an establishment of the truth of whatever it was that he did hear.

In this connection it is also contended that the court, in plaintiffs favor, committed the thirty-thinl error assigned, in permitting the plaintiffs witness J. H. Sears, to relate a. remark that he, Sears, himself, made at the time he and one Terry were trampling out large coals of tire along the sidewnlk, to-wit: “I remarked that if there were any coals underneath the plank walk we would soon have a blaze.” “The wind was blowing quite fresh at that sime.” And it is contended that the admission of this remark in evidence was the same in character as the testimony sought to be drawn from the witness Dupont. Where the parallelity or similarity lies between the two propositions, either in substance, or effect intended to be produced, we are wholly at a loss to discover. The attempt, with the* witness Dupont, was to have him testify to what lie-heard another party say, in order to prove the origin of the fire. With the witness Sears, he was allowed to rehearse to the jury an observation or remark that he himself made as to the probability of a blaze “if there were any coals underneath the plank walk,” such as he, at the time of the remark, was trampling out. And he gives as reason for the remark, “that the wind was blowing quite fresh at the time.” In the case of Dupont, hearsay evidence was attempted;, in the case of Sears, he was allowed to rehearse an oral observation made by himself, that was prompted by the surrounding circumstances at the time, of wind, dry weather, inflammable sidewalks, &c. If Sears in the jury’s presence had stated that “he knew or thought at the time, from the surroundings, of fresh wind, inflammable sidewalks and dry weather, that there would be a blaze if any of those coals were underneath the walk,” it would have amounted to the same thing in substance and effect as the rehearsal of his formerly made oral remark. Under the strict rule-of evidence, this observation of Sears’ should have been excluded, not upon the ground of its being-hearsay, as was DuPont’s, but because it was the expression of his opinion. But, in the light of the other-legal, and with the jury convincing, testimony in the case, establishing the correctness and truth of Mr. Sears’ observation, we cannot see that the re-statement of that observation to the jury could possibly have been productive of any harm to the defendant.

Nil. Another error assigned is the admission of certain evidence of one Gr. W. W. Davis, over defendant’s objection. The objection was that his testimony was the same as that of certain of plaintiff’s witnesses who had testified before the defendant’s witnesses, and that it was not admissible in rebuttal.

The authorities hold that it is within the discretion of the trial court to permit a plaintiff who may before resting have introduced enough testimony to make out a prima facie case, to introduce, after the defendant, additional proof in chief, as distinguished from proof in rebuttal, and the exercise of this discretion is not assignable for error except in cases of manifest abuse. Thompson on Trials, secs. 343-347. We do not see that there has been any abusé of discretion in this case. In view of the character of the defense on the question of negligence, and the fact that the decision of this question became one of the mere credibility of witnesses, we think the judge properly exercised that discretion in permitting additional witnesses to those first used, to prove the escape of sparks by the same engine, either at the same or other points, that morning. It does not appear that the defendant was placed a,t an unfair position, or suffered any disadvantage from the mere fact of these witnesses testifying-after tlie defendant liad put in its case. 'Xo exercise of discretion ñ'nfairly as against tlie defendant on tills line is shown.

XIII. There is sufficient testimony to sustain the verdict, and while there is on some points such conflict-between plaintiff’s witnesses and those of the defendant as makes this peculiarly a case in which an appellate court, cannot interfere, or disturb tlie finding of the jury, there is no such inconsistency or conflict, or unnaturalness in the testimony of the plaintiff's witnesses as can cause it to be said that no jury could believe them. - Their credibility was a question for tlie jury. Interest in or connection with other suits of the same character against the defendant, are circumstances affecting the credibility of witnesses; they do not disqualify the witnesses, but constitute a consideration with which the jury, and not tlie court, have to deal and have deal t. ,

The member of the court whose name appears at the head of this opinion, feels it is due to Ms associate, Mr. Justice Taylor, to say that lie prepared about the same number of the subdivisions of this opinion as were prepared by such member.

The judgment is affirmed.