DOWDELL, J.
This is a suit by the Sullivan Timber Company, a corporation, against the Louisville & *391Nashville Bailroad Company, to recover damages for the negligent burning and destruction by the Bailroad Company of the plaintiff’s property. The complaint as originally filed contained five counts, to which were subsequently added by way of améndment three other counts, making in all eight counts. The defendant pleaded not guilty to all of the counts, and in addition, filed a number of special pleas of contributory negligence, to all excejjt the third count, and to all of which special pleas, except the thirteenth, demurrers were sustained. The trial of the case resulted in a verdict and judgment in favor of the plaintiff, and from this judgment the defendant Bailroad Company prosecutes this appeal. The court gave at the request of the defendant in writing the general affirmative charge, as to the 1st, 2d, 4th, and 5th counts. This eliminates from consideration all questions that arose on the pleadings and on the trial, as to these counts. — Highland Avenue & Belt R. R. Co. v. South, 112 Ala. 642" court="Ala." date_filed="1896-11-15" href="https://app.midpage.ai/document/highland-avenue--belt-railroad-v-south-6516908?utm_source=webapp" opinion_id="6516908">112 Ala. 642.
The third count of the complaint, in connection with averments of negligence, etc., on the part of the defendant, as to the cause or origin of the fire, which destroyed plaintiff’s property, counted on the falling sparks emitted from a passing locomotive of the defendant company, that fell upon the shed of the plaintiff described in the complaint, setting fire thereto, and thence the fire was communicated to and destroyed the other property. The sixth count counted on the negligence of the defendant through its servants, throwing grass or weeds, which had been cut down under its direction, towards and near plaintiff’s property, and negligently and wrongfully allowing the same to remain near the plaintiff’s premises, by which means fire caused by sparks from a passing engine falling on the grass and weeds was communicated to and destroyed plaintiff’s property. The seventh count counted on the sparks from the passing train setting fire to the dry grass, weeds and greasy waste, which the defendant had negligently and wrongfully thrown into the street between its railroad track and plaintiff’s property, and near to plaintiff’s premises, and negligently allowed the same to remain there, and whence the fire spread to and destroyed *392property. The eighth count counted upon the carelessness and negligence of the defendant in allowing fire to escape from its engine and set fire to the dry grass, weeds and other combustible material in Water street, which fire spread to and destroyed plaintiff’s property. The special pleas to which demurrers were sustained, set up as a defense to the action, in different ways, an alleged negligent failure or omission on the part of the plaintiff, its agents or servants to do certain things, whereby the injury complained of might have been averted, and that the alleged negligent failure or omission to do which contributed proximately to the injury complained of. The second plea averred that the plaintiff had constructed its shed of dry boards placed upright and covered with wooden shingles, along the immediate east edge of Water street, and to the east of this had other wooden buildings, and a great deal of lumber, so situated as to be in great danger of burning should the shed catch on fire; that the defendant had a right to run its engine on said street, which engine frequently threw out sparks, and that the weather at that time was, and had been' for a long time prior, very dry, and there was constant danger of these sparks setting fire to any dry grass or weeds, or other inflammable material that might be on said street, and of said fire being communicated to plaintiff’s property, and plaintiff knowing all this, nevertheless, negligently allowed the dry grass or weeds or other inflammable material, to be and remain upon said street, which proximately contributed to communicating the fire complained of to plaintiff’s property. The third plea is a repetition of the second, with the additional averment in substance that the fire was caused by sparks from defendant’s engine, and that J. W. Black, the president of plaintiff’s company, and who had the control and management of its property, saw the sparks fall into the street where he knew there was dry grass, etc., and having the present means of preventing the spread of any fire that arose from falling sparks in the dry grass and weeds, but negligently failed to take any steps to prevent said grass from burning, and went off without looking to see if said sparks had set fire to said *393grass and weeds, or was about to do so, and his said negligence also proximately contributed to the injury complained of. The fourth and fifth pleas are practically the same as the third. The difference being in averment that defendant’s train frequently and daily passed along the street in front of plaintiff’s property at a rapid rate, throwing burning sparks into the street where this dry grass, etc.,- was lying, which dry grass and weed's the plaintiff negligently allowed to remain in the street, and J. W. Black, plaintiff’s president, knew these dangerous conditions and saw the sparks fall into the street, but negligently went off without looking to see if said sparks had set fire to said grass and weeds, although he had the means at hand with which he could have prevented the spread of the fire to plaintiff’s property. The 6th, 7th, 8th, (the 9th plea being withdrawn), 10th, 11th and 12th ] leas, were substantially the same as the 2d, 3d, 4th and btli, except that each contained the additional averment that six feet on each side of the said street was, by an ordinance of the city of Mobile, devoted to sidewalks, and it was by ordinance of said city, made the duty of the tenant of every piece of property to keep the sidewalk in front thereof clean and free from grass, etc., and that plaintiff had failed to do this, and that this omission of duty by plaintiff to clean or sweep this six feet, was negligence on the part of the plaintiff, which contributed proximately to the injury complained of. The 14th, 15th, 16th, and 17th pleas are the same in substance as the 6th, 7th, 8th, 10th, 11th, and 12th, except that they set out the city ordinance requiring each tenant or occupant of a house to sweep the sidewalk in front of his house before ten o’clock of each day. The 2d and 3d pleas to the complaint, as amended, are to the 6th count, and state the contributory negligence of the plaintiff to consist in its knowledge that defendant’s' servants had negligently thrown large quantities of grass and other inflammable material near plaintiff’s business, and of the danger of burning sparks escaping from defendant’s engine and setting fire to this said grass, etc., and which would be communicated to plaintiff’s property, but that the plaintiff negligently allowed said dry grass and other inflammable material to remain *394iii said street, etc. The 4th and 5th pleas to the complaint, as amended, are addressed to the 7th count, and each plea after rehearsing the several wrongful and negligent acts of the defendant set. out in that count, then avers that the plaintiff negligently failed to remove the said dry grass, greasy cotton waste, etc., and thereby proxiniately contributed to the injury complained of. The. 6th plea to the complaint, as amended, is addressed to the 8th count, and states the contributory negligence relied on to consist of the knowledge on the part of plaintiff, through its president, that fire had escaped from defendant’s engine as averred in said 8th count, and of the danger of igniting the dry grass and weeds and other combustible matter lying on the space of ground near Water street between the plaintiff’s said premises and defendant’s railroad track, and of being- tlierebv communicated to plaintiff’s property, and the plaintiff, having then and there the means of preventing said fire from communicating to its said premises, negligently-failed to taire the necessary steps to that end, and that plaintiff’s said negligence proxiniately contributed to the injury complained of. To all of said special pleas as stated above demurrers were sustained, except to the 13th special plea, which latter'plea set that the plaintiff negligently placed or threw the inflammable material into the street near its premises, and that this negligence proxiniately contributed to the injury. On the 13th special plea, and the plea of the general issue the cause was tried.
The principal facts set up in these special pleas may be summarized as follows: That the plaintiff’s shed was constructed of inflammable material along the immediate east side of Water street, within thirty feet of defendant’s railroad track, which ran in and along said 'street; that dry grass, weeds and other inflamable, matter had accumulated on the street and side-walk in front of the plaintiff’s property; that the weather was dry; that the defendant’s locomotive engine, passing along there every day, frequently threw out sparks in dangerous quantities, all of this Avas known to the plaintiff; that plaintiff was required by city ordinance to sweep *395tlie sidewalk, which it negligently failed to do, and negligently allowed the dry grass, weeds and greasy waste to remain in the street; that the danger of lire escaping from defendant’s engine and igniting the dry grass, etc., in the street and on the sidewalk was apparent and known to plaintiff; that the plaintiff’s president saw the engine throw out the sparks that caused the fire, and negligently went away without looking to see if the grass had been ignited. It is to be observed that in none of the special pleas to which demurrers were sustained, in the alleged negligence counted on as proximatelv contributing to the injury complained of in the complaint, is it charged that the plaintiff, its agent or servant, was guilty of any direct or positive act of negligence, but the alleged negligence consisted in the failure or omission to. act.'
The theory of the defense set up in the special pleas is based on the. principle, that if one commits a wrong, whether in tort'or in contract, whereby another is affected, or is apparently likely to be affected, it is both the legal and moral duty of the latter to exercise reasonable diligence to avoid the resulting injury to himself or minimize it as far as possible, and if he carelessly or negligently fails to do so he cannot recover of the wrongdoer such damages as he could have thus escaped.
This doctrine is well established in cases of the breach of contract and so recognized by this court in Murrell & Whitney v. Summers, 32 Ala. 66, and Strauss v. Meertief, 64 Ala. 307. But it is not confined to cases of contracts, and to cases of personal injury, as suggested in argument by counsel for appelee. It is equally applicable in cases of injury and damage to property resulting from a tortious act, and no good reason exists why it should not apply in such cases. The doctrine was recognized and applied in Little v. Fletcher, 81 Ala. 237, in an action for injury to property resulting from defendant’s negligence, and where the contributory negligence pleaded was similar in character and principle to that pleaded .in the case at bar.
The pleas here are not inconsistent with, or opposed to the principle asserted in L. & N. R. R. Co. v. Marbury Lumber Co., 125 Ala. 260, to the effect that the owner of *396property cannot, be required to anticipate the negligence of another, but on the contrary, has a light to presume that the railroad company will use proper equipped engines and will operate them in a careful manner. They do not involve the proposition of a duty on the owner of the property destroyed to anticipate negligence on the part of the defendant railroad company in the operation of its locomotives. The contributory negligence set up is subsequent to the alleged negligent act of the defendant counted on by the plaintiff as the cause producing the injury complained of. The negligence counted on as the causation of the injury and resulting damages, was not left in anticipation at the time of the alleged contributory negligence pleaded. The negligent act of the defendant was a consummated fact, known to the plaintiff, and that it, would likely result in injury to plaintiff’s property unless prevented, and which could have been prevented by the exercise of ordinary care and diligence by the plaintiff or its agents. ■ In 1 Sedgwick on the Measure of Damages, (7th ed.), p. 164, under the head, “Avoidable Consequences not Allowed,” the doctrine is thus stated: “The same principles which refuse to take into consideration any but the direct consequences of the illegal act, is applied to limit the damages where the plaintiff, by using reasonable precautions, co.uld have reduced them,” and on page 165, quoting from Mr. Starkie, it is said: “In an action for an injury occasioned by the negligence of another, it is a good defense to show that the injury so far arose from the negligence of the plaintiff, that he might by ordinary care and caution have avoided the injury.” The following cases are cited as being in point, or bearing on the subject : Eaton v. Oregon Ry. & Nav. Co., 24 Pac. 414; I. C. R. R. v. McKay, 12 Sou. Rep. 447; R. R. Co. v. McClelland, 42 Ill. 359; Tillary v. St. L. & S. T. Ry. Co., 6 S. W. Rep. 8; Mills v. Chicago, M. & S. T. Ry. Co., 76 Wis. 422" court="Wis." date_filed="1890-04-08" href="https://app.midpage.ai/document/mills-v-chicago-milwaukee--st-paul-railway-co-8183348?utm_source=webapp" opinion_id="8183348">76 Wis. 422.
Our conclusion is that the court erred in sustaining the demurrers to the special pleas It is, however, proper to say, that in our opinion the mere failure on the part of the plaintiff to comply with the ordinance of the city *397as to sweeping tlie sidewalk, though, such an omission of duty as might in law become negligence per sc, would not alone and of itself, and without a knowledge on the part of plaintiff of the defendant’s act of negligence, and of the dangerous condition, and of the probable consequences of defendant’s negligence, prevent a recovery by-plaintiff for the defendant’s wrong, which was the primary cause of the injury.
Several exceptions were reserved to the rulings of the curt on the introduction of evidence. We have examined and considered the same, and fail to find that any error was committed in any of these several rulings.
The defendant’s railroad ran in and along a public street in the city of Mobile, its right of way was limited to its track. The third charge given at the request of the plaintiff fixed a liability on the defendant for the'damages resulting from the fire caused by the falling sparks emitted from the engine and igniting the grass on its right of jvay, although the engine was properly equipped and properly managed, for a failure to keep its right of way clear of grass, weeds and combustible material likely to be ignited by sparks. None of the remaining counts of the complaint, after 1st, 2d, 4th, and 5th were eliminated, counted upon the failure of the defendant to keep its right of way clear of grass, weeds and combustible material, and the charge when referred to the counts not eliminated was bad. Moreover, there was no evidence that the fire originated from sparks falling in the grass and weeds on the right of way, and the charge for this reason was abstract. Charges four and five are subject to the same criticism. There -was no evidence to show that a properly constructed and operated engine would not throw sparks to a1 distance of twenty-eight feet, and such cannot be said to be a matter of common knowledge. The eighth charge, therefore, was improper, moreover, this charge ignores the evidence that a strong wind was at the time blowing. — L. & N. R. R. Co. v. Marbury Lumber Co., 125 Ala. 256-7; A. G. S. R. R. Co. v. Taylor, 129 Ala. 246.
To rebut the presumption arising from the prima facie case circumstantially shown by the plainteff, the defendant introduced evidence showing a proper equipment *398and management of the engine, which was uncontrodicted. The 9 th charge hypothesizes the emission of sparks from the defendant’s engine in dangerous quantities only, but not in quantities unusual for a properly constructed, equipped and managed engine to emit. It is sufficient to put the burden upon the defendant to show that the engine was properly constructed and handled, that the fire originated from sparks emitted by the engine, and the very fact that the fire did so originate would show that sparks were emitted in dangerous quantities and the charge was calculated to lead the jury to draw such an inference, and when so construed, the facts hypothesized amounted to no more than the -prima facie case made, which required the defendant to show proper construction and handling, and as applied to the evidence was directly opposed to the rule as stated in L. & N. R. R. Co. v. Maburg Lumber Co., supra. If the charge had hypothesized the emission of the sparks in unusual and dangerous quantities, then it would have been good.
The third count avers that the fire that so escaped fell upon the plaintiff’s property, while the 8th count charges that the defendant negligently <■->+ down grass and weeds in the space between the track and the plaintiff’s shed, and that the sparks fell into this grass and weeds setting fire to the same which was communicated to plaintiff’s premises.
There was evidence tending to show that the defendant cut the grass or weeds in this space, and, left the same lying where it was cut, but there was also evidence tending to show, that the defendant did not cut any grass or weeds in this space, and that the grass and weeds between the track and shed were left standing. Under the instruction contained in charge 17, the jury were required to find for the plaintiff, although they might believe that the grass was not cut down, but. was left standing, and although there was no count in the complaint covering such case, as the pleadings stood after the elimination of the 1st, 2d, 4th and 5th counts. The charge, therefore, was bad. The remaining charges given at the instance of the plaintiff, when referred to the pleadings, as they stood after the elimination of the several counts *399mentioned, and to tlie evidence, correctly states the law and no error was committed in the giving of them, except as to the 18th and 19th. The ordinance limiting the speed was not intended to impose any duty on the railroad company in reference to structures or buildings along the line of the railroad, but was intended for the protection of people using the street.
Of the refused charges requested by the defendant, and here insisted on, the 4th and 5th were general charges to find for the defendant under the 6th and 7th counts of the complaint. As to these counts there was conflicting evidence, at least evidence authorizing different inference, and for this reason, these charges were properly refused. The 6th refused charge would have been proper if confined to the 3d count, but was bad in that it ignored other phases of the complaint and the evidence in the support thereof, upon which a. recovery was sought. The 9th, 10th, 11th and 12th refused charges were likewise faulty in ignoring phases of the complaint and evidence in support thereof, on which a recovery was sought. The 8th charge was not subject to this ground of objection, as urged by counsel for appellee, and as it correctly stated the law should have been given.
The 7th refused charge was argumentative and for that reason, if no other, the court properly refused it. For the errors pointed out, the judgment will be reversed and the cause will be remanded.
Reversed and remanded.