The following opinion was filed December 6, 1892:
Winslow, J.
The trial was long, and the exceptions taken were numerous. We shall review the case no further than is necessary to a discussion of certain questions fundamental to the case, upon which we think the conclusions of the trial court were erroneous.
I. The court refused to submit to the jury any question as to the alleged negligent construction, condition, or operation of the engine, and ruled that there was no evidence tending to show that there was any negligence on the part of the company in either respect. . The evidence of defendant’s employees was to the effect that the engine was provided with the most approved appliances to prevent the escape of fire; that these appliances were all in good-condition, the dampers properly closed, and the ash pan properly cleaned, at the time the engine passed over the track; and there was no positive evidence of any defect in the engine or its appliances on the part of the pláintiff. Now, it is urged by the defendant, in support of the ruling of the trial court, that science has not yet succeeded in constructing devices that will absolutely prevent the escape of minute sparks from a locomotive at work, consequently that the mere fact that a fire was discovered soon after the engine passed (there being nothing to show the size of the spark or coal which caused it) is not sufficient to justify the jury in finding negligent construction, condition, or management of the engine, in the face of the great weight of affirmative testimony as to good condition and proper management, because the fire may have resulted from the *178presence of one of the minute sparks which no appliance yet. invented can arrest. In support of this argument, Spaulding v. C. & N. W. R. Co. 30 Wis. 110, is cited. The case, however, is not like the Spaulding Gase in some of its. essential features. In the case at bar the evidence tended to show that the fire originated from a spark or coal dropped from the ash pan. There was evidence from which the inference was strong that the fire started between the rails of the trapk. This was certainly a pretty satisfactory indication that the fire was not started by a cinder from the smokestack, because such a spark, with the strong-wind which the evidence tends to show was blowing, would probably have been blown to some distance from the track. There was also considerable evidence on the part of the defendant’s employees that coals or cinders could not escape from the ash pan if the pan was in proper condition,, properly cleaned, and the dampers closed; some of the-witnesses going so far as to say that the escape of coals or cinders from the ash pan, under such circumstances, was impossible. The situation, then, was this: There was evidence from which two conclusions might properly be drawn by the jury, notwithstanding the positive testimony of defendant’s employees as to the condition of the engine: First, that the fire was started by cinders- escaping from the ash pan; second, that no cinders or coal could escape from the ash' pan, if properly constructed and in proper condition. If these two facts were found, then the fire must have arisen because the ash pan was either not properly constructed, or was out of repair, or not properly cleaned or managed, at the time of the passage of the engine over the track in question. These questions should certainly have been submitted to the jury. The case is identical in principle in this regard with the case of Brusberg v. M., L. S. & W. R. Co. 55 Wis. 106.
*179II. The plaintiff submitted certain questions which it desired should be made a part of the special verdict, but none of which were incorporated in the verdict by the court. These questions were: (1) Whether the fire originated in combustible material placed and left on the track by the defendant; (2) if not, did the defendant know that the combustible material in which the fire originated was upon the track a length of time prior to the fire reasonably sufficient to remove the same, and neglect to do so? Touching the alleged negligence of the defendant, the court submitted but one question, namely, whether, by reason of the original negligent construction of the roadbed, the fire was occasioned. The effect of this was to eliminate from the case all questions of negligence on the part of the defendant except in the one respect named in the question last referred to. There was certainly evidence in the case tending to show that there was a considerable amount of chips along the track in front of the ice-houses, which had been made in course of the construction of the railroad, and in blocking up the ties, and which had been allowed to remain there by the railroad company. There was also evidence tending to show that there was much hay and sawdust scattered along the track at the place where the fire originated, which had been dropped there by the Jefferson Ice Company in unloading cars and loads of hay, and which had been allowed to remain by the railroad' company; and a jury might reasonably find that no fire would have started but for the presence of one or both of these classes of inflammable material upon the track. It seems evident that, if this debris had been upon a part of the permanent right of way of the company, the question whether the company had exercised reasonable care in keeping its right of way free from inflammable material would have been one for the jury. Gibbons v. W. V. R. Co. 66 Wis. 161. In this *180case, however, it is insisted that because the railway company had only a naked license to lay its track, and had no interest in the land, it had no control over the premises covered by its rails and ties, and owed no duty to any one to remove combustible material. We have been referred to no case which lays down this principle, and, if there be any, we shall decline to follow it. In our opinion, the duty of the defendant company to take reasonable care of the track to prevent the starting of fires is not lifted from its shoulders by the fact that it did not own the right of way, but was simply a licensee. It built this track, and was using- it for its own gain in the freights and tolls which it expected and was entitled to charge the ice companies. The track was rightfully laid. The company had a right to operate it and- collect freights so long, at least, as its license was unrevolced. It would be strange to hold that the railroad company possessed all the substantial rights in the way of using the track and collecting its freights which it would have if it owned the right of way, with none of the duties or liabilities which ordinarily result from such use. Is there any good reason for so holding?' We think not. Assuredly the license to lay its track and operate its engines and cars carried with it necessarily the right and duty to put and keep its tracks in such condition that the business could be done with safety to its employees and its patrons. With the right which it enjoyed and was exercising for its own gain and profit goes hand in hand a correlative duty to use reasonable care to keep its tracks clear from inflammable material. Trom these views it is clear that the court should have submitted in some appropriate form to the jury the question whether it negligently placed inflammable material upon its track, or negligently allowed such material to remain there, and whether, in either event, the fire in question originated in such inflammable material.
*181Some of the material issues in the action not having been passed upon, a new trial will be necessary.
By the Court.— Judgment reversed, and cause remanded for a new trial.
Upon a motion fór a rehearing there was a brief for the respondent by John T. Fish, of counsel, and a brief for the appellants by Miller, Noyes <& Miller.
The motion was denied January 31, 1893.