Collard, Judge.
The charge complained of is a correct charge when the plaintiff has not himself been guilty of negligence in exposing his property to destruction by fire from a passing locomotive. The principle given in the charge is clearly applicable to cases where without fault or negligence of the owner his property is consumed by fire from defendant’s engine; but it would not be applicable without qualification in all cases. When the owner is negligent in exposing his property to fire the charge should not be given, and when the negligence of the owner is in issue the charge should be qualified and made to de*83pend upon the fact that the owner was not negligent. If the owner place cotton or other inflammable material so nea,r to passing engines that it would be in danger of being ignited there would be no obligation on the defendant to show that it had used all reasonable and necessary precautions to prevent fires. The person who is himself not guilty of negligence alone is entitled to require defendant to prove its want of negligence. When plaintiff is not guilty of negligence in exposing his property to fire, and when there is no question raised as to his negligence, it is just and proper, if it be affirmatively shown that the fire was communicated by sparks from defendant’s locomotive, to require the defendant to show that it used the most approved fire arresters and that they were in good repair, and skillfully operated, but if there be an issue upon the evidence as to contributory negligence of the owner the burden of proof would not be upon the defendant until the plaintiff is exonerated from negligence by the jury. It will not be enough to submit a charge upon contributory negligence of the plaintiff as an independent issue; the charge as to burden of proof would not be correct in such a case without explanations. In the case at bar the charge was given without restrictions and in that we find reversible error. In view of another trial it should be stated that when the burden of proof is thrown upon defendant it would be relieved from such onus by its showing it had used all precautions known and approved for the prevention of injury by fires. (I. & G. N. Ry. Co. v. Timmermann, 61 Texas, 663; T. & P. Ry. Co. v. Levi & Bro., 59 Texas, 677; Ill. Cen. R. R. Co. v. Frazier; Woodson v. Milwaukee R. R. Co., 21 Minn., 60; Fitch v. Pac. Ry. Co., 45 Mo., 322; Wood on Ry. Law, vol. 2, sec. 1347, and other authorities cited in note 3.)
On account of the error indicated in the charge, the judgment should be reversed the cause remanded.
Reversed and remanded.
Opinion adopted November 11, 1887.