BOARMAN, District Judge.

The plaintiff, a fire insurance company, having paid fire losses to the several owners of 1,150 bales of cotton amounting to $55,506.92, which was stored and destroyed in a compress building, now, as subrogee of the several owners of the cotton, sues the defendant railway company in action or tort for damages.' The plaintiff company, also, in this action, sues to recover $4,-375 paid by it on a fire loss to the owners of the compress building.

Under the view of the court, the plaintiff company, as subrogee, is entitled in this cause of action, to sue the defendant company for damages under the same rules of law, substantially, that would have or could have been rightfully invoked by or against the owners of the destroyed cotton on the trial of a suit instituted by the said owners for themselves, charging the defendant railway company with such actionable negligence as was the proximate cause of the fire loss. The court now, considering and disposing of the issue as to the liability of the defendant company for the amount paid by the plaintiff company to the compress company for its fire loss on its building, is of the opinion that no recovery on that demand can be had against the defendant company.

The terms or conditions of the contract between the compress company and the railway company, in relation to the compress company being permitted to extend its platform on and over the railway’s right of way, forbids the plaintiff company to recover damages in this case against the defendant railway company. The owners of the cotton in question consigned the same to the compress company for the purpose of having it compressed. As soon as the cotton came into its possession, and as long as it so remained, I think the compress company occupied the relation of bailee for, or to, the owners of the cotton which was destroyed by fire while in the possession of the compress company. Eor the purposes of disposing of this matter, the plaintiff insurance company will be treated as if, in law and fact, it stood at the time of the fire, as the compress company did, in the relation of the bailee of the owners of the cotton in question.

Considering, for the purposes of the penfling matter, the legal relations of the parties to this suit to be as I have just'suggested, it fol*781lows that the plaintiff company was charged, as between itself and the defendant company, with more or less of the duties which are by law or in the nature of things imposed on a bailee.

On the trial of the merits of this case,.the burden of proof was on the plaintiff company to show, by a preponderance of evidence: First, that the cotton which was destroyed in the fire was set on fire by flying sparks thrown from the defendant company’s engine, which at the time was being operated in its railroad yard on tracks near to or running lengthwise alongside of the compress company’s platform. Second, that considering the nature of the physical conditions and environments of the immediate place and locality in which the engine was engaged in switching work, and considering the degree of reason- ■ able care with which the law, under the conditions and circumstances of the moment, charged the defendant company, the spark arrester of the engine was not such an instrumentality as the .defendant company, in response to its legal duty, should have had in its use, and the railway company in using such a defective engine at the time and place was guilty of actionable negligence. Third, that the engineer, in operating the engine, was guilty of such negligence as was the proximate cause of the fire loss of the cotton on the compress platform.

On the trial of the case, it appears that the weight of the evidence fairly supported the first proposition; that is, that the fire was caused by flying sparks thrown from the engine falling on the exposed cotton lying or stored on the compress platform. I think it was equally as clear from the evidence that the spark arrester of the engine from which the flying sparks were thrown, so as to ignite the cotton, was reasonably well constructed, and was then in a reasonably safe condition for the company's use.

It seems that all the witnesses having any personal knowledge of the conditions of the spark arrester or of the engine being operated, at the time of the fire, uniformly state in their evidence that the spark arrester was well constructed and was kept in, and was at the time in, good repair. It appears, too, that all the witnesses connected with the operations of the engine, contemporaneously with the fire, uniformly stated that the engine was being operated by the engineer on that occasion, with reasonable care and consideration for the conditions and environments of the situation and locality. These expressions of the court’s opinion, on the law and issues of fact involved in the three propositions named, seem sufficient to authorize the granting of a new trial; but I desire in determining the pending matter to give expression to the court’s view as to the special contention of counsel for the defendant company, that the compress company, as bailee of the cotton in question, was guilty of contributory negligence, which was the proximate cause of the fire loss, and which should, in passing upon this matter, be charged to the plaintiff company.

As between the parties to this suit, I think the contributory negligence of a bailee of cotton, whereby it was consumed by fire proceeding from a railroad engine, is imputable to the owners of the cotton.

The insurance company readily paid the losses to the owners of the cotton. As between the insurance company and such owners, it may be that no legal defense against paying them could have been success*782fully grounded on the negligence of the compress company in not avoiding or extinguishing fire sparks which set fire to the cotton while the compress company, as bailee, was handling the same. L,et that be as it may, it does not follow that if the owners of the cotton, being without insurance on this cotton, were now suing the defendant railway company for damages because the cotton was set fire to by flying sparks from the defendant’s passing engine, such a litigant should recover against the railway company under the evidence in this case and under the rules of law applicable thereto.

The relations and mutual obligations of the litigants in a suit by the owners of cotton to recover a fire loss on an insurance policy would be 'shown in the obligations and warranties of the insurance contract. As such contracts are usually written, an insurance company could not resist payment to the owner of cotton on a fire loss because their bailee was guilty of contributory negligence. Notwithstanding the evidence should show such contributory negligence of a bailee, as appears in this case, the insurance company would have to pay the fire loss to the owners of the cotton. If the men appearing as the owners of the cotton in this case were now suing the defendant railway company for damages because of its'negligence in setting fire to the cotton in question, the cause of action would be on a tort. It is clear that the rules of law applicable in such a suit — the evidence being the same as in this case — would be essentially different from legal rules applicable at the trial of a suit on a contract of insurance.

Treating the insurance company as if it stood in the shoes of the compress company at the time of the fire and imputing to the insurance company the contributory negligence charged against the compress company, the bailee of the several owners of the cotton, and applying such rules of law as should be applied if the several owners of the cotton, instead of the insurance company, were now suing the defendant railway company for damages, it is clear that there were mutual or reciprocal duties which the law imposed on either litigant in this case, engaged, as they were, at the time of the fire, in the activities of their legitimate business. Such duties as are suggested here are not of a statutory nature. They are formulated in the reasonable relation of things, and they inhere, if they exist at all, in the implications of law regulating the conduct of men who may be engaged in such business as the litigants (the compress company and the railway company) were at the time of the fire. Such duties are implied in a rule of conduct, approved by the common thought that men engaged in lawful industries should be mindful of the rights of others and carefully use all means at hand, reasonably necessary under the circumstances, to avoid injury to the property of others.

Counsel in argument conceded substantially that, however well constructed an engine may be, or however carefully it may be operated, some flying sparks will be thrown from the smokestack which will carry danger to inflammatory material situated within 30 or 40 feet of a passing engine. The evidence shows that the compress platform was projected over the railway’s right of way within less than 10 feet of the company’s track. It follows that all damages from such a cause —that is, from a passing engine so equipped and operated — cannot be *783entirely eliminated; to require such an elimination of the dangers would be to forbid a railway company to use its engines near to or by a compress plant. Under the suggestions just made, it is clear that the compress company, in the nature of things, knew of and assumed some of the risks which inhered in the physical conditions of the situation. The compress company, bailee of the several owners of the cotton, should be charged with assuming all such risks as at any time might be present when or where a reasonably safe engine, being operated with the due care and consideration for the exposed cotton, was running over the tracks near by the compress platform.

The compress company was, at the time of the fire, not actually engaged in compressing cotton bales. Its machinery was idle. Its crew were engaged in handing cotton on the platform, presumably its employés had sufficient time -to look after dangers to the cotton. There were a large number of bales of cotton stored, apparently for the moment, on the platform, which, in the nature of things, were more or less exposed to damage by fire sparks from a running engine. It may be that there was no negligence chargeable to the compress company in having such a number of bales of cotton stored, uncovered or unprotected, as they were, on its platform. It may be that the cotton bales were so kept or placed on its platform in the ordinary and necessary daily operations of its compressing business. A few minutes before the fire occurred, Miller, the manager of the compress company, was engaged in inspecting or tagging the cotton bales. At the time of the fire, the railway company was operating its engine over the yard track for the. purpose of switching its cars from place to place over its tracks in the railway yard.

The compress company knew of the railway’s daily use of its yard tracks, and of the conditions and dangers which necessarily attended the railway’s daily operations. Both the litigant companies had full knowledge of the inflammable character and conditions of the several hundred bales of cotton that were often exposed, uncovered, and unprotected from fire on the compress platform. Such facts, being known to the engineer, should have made him (as he swears it did make him) careful in operating his engine on the track running near to or close by the compress company’s1 platform, on which he says he knew there were often, more or less, exposed cotton bales. The engineer says he had in mind and knew of such dangers, and he, under such circumstances, always carefully operated his engine; that he knows he was operating his engine carefully that day. The physical environments and conditions fully known, as they were, to either of the litigant companies (considering the compress and railway company as such parties), suggested the nature of the reciprocal duties with which the law charged either of the parties, inter sese, to this suit.

There was much conflicting evidence relating to the second and third proposition; that is, as to how or in what manner, whether carelessly or carefully, as to the immediate conditions, the engineer, when running his engine close to the compress platform, operated his engine. Several of the plaintiff’s witnesses point out, in detail, how negligent and indifferent, as to the"things in the locality, the' en*784gineer operated his engine at the time in question. Some of the plaintiff’s witnesses said that on other occasions similar to the one in question, unusually large sparks were thrown from th'e smokestack of the engine. Other witnesses for plaintiff said, substantially, that the engineer, at or about the time of the fire, ran very fast over the trade near to the platform, and the engine’s violent exhaust caused large fire sparks to fly from the engine, and that such acts showed negligence and carelessness in the operation of the engine.

It, is not necessary, for my purposes now, to recite in detail either plaintiff’s or defendant’s evidence on these issues of fact. Much, if not all, the evidence of a direct nature tending to show the engineer’s negligence, was given by witnesses for plaintiff who were more or less at some distance from the engine or compress building, and not in any way engaged in the operations of the switching work. They were mostly casual lookers-on at the switching movements of the engine in the yard. The engineer, fireman, and conductor, and other witnesses who were engaged actively in operating the switch engine state that all the operations of the engineer and engine were characterized by reasonable care and consideration for the conditions and environments of the situation.

I am not disposed to agree with the strenuous contention of plaintiff’s learned counsel that the defendant’s witnesses — mostly railway employes — as to material incidents at the time of the fire, were not credible witnesses because they were prejudiced in favor of the defendant railway company. Of course, their' relation to the railroad company may have given some favorable coloring to their statements in favor of the railway company. It was equalfy apparent during the trial that local surroundings and circumstances may have, in some degree favorably, for plaintiff’s contentions, colored the views of some of the plaintiff’s witnesses. One familiar with such trials cannot be unmindful of such influences on either side of an issue, like this. One learns from experience in such trials to scrutinize the weight of contradictory testimony. If the witnesses of either side were disposed to give false evidence, their opportunities respectively for indulging in perjury were possibly equal; but, conceding that the several witnesses, on either side, who gave testimony as to such material issues as relate to the carelessness and negligence displayed in the activities of the engineer and engine, were possessed of equally good motives and purposes to tell the truth as to such instances, it is clear that the employés of the railroad company who were at the time of the fire actively engagéd in operating the engine, and engaged in the switching work over the railway’s yard tracks, had much better opportunities for seeing, noting, and observing the movements of the engineer and engine than the several witnesses for plaintiff company, whose evidence was more or less of a circumstantial nature. Thé engineer, fireman, conductor, and other employes engaged in all the activities of the moment, in their testimony, spoke of incidents and things which were within their own knowledge. All the direct evidence, as to the construction and condition of the spark arrester, was given by the defendant’s witnesses who saw and examined the spark arrester, and who, in the nature of things, would be or would *785have been the only eyewitnesses to the character or condition of the spark arrester. No one of the plaintiff’s witnesses gave any evidence founded in their own knowledge as to the construction or condition of the spark arrester. There was no conflicting evidence as to the spark arrester’s condition, except such as may be said to be circumstantial or inferential from the defendant’s testimony. There was nothing in the evidence to show that the spark arrester was not of the most improved plan, and that it was not at the time in good repair and working condition. Much of the adverse testimony as to the defective condition of the spark arrester appeared on the trial in the suggestions and contentions in argument of zealous counsel for the plaintiff.

On the trial the evidence showed that some of the bagging on some of the cotton bales had been cut open on top of the exposed end of the cotton bales by cotton samplers, and more or less cotton protruded from the open space cut in the bagging and made the bales so cut more liable to catch fire if sparks from the engine fell upon the exposed places. Such evidence was only suggestive of a condition or incident which might show contributory negligence. The evidence, which seemed to be strongly persuasive, if not conclusive, on the issue of contributory negligence, shows that the compress' company, recognizing the danger to which the cotton bales, remaining exposed and uncovered on the platform, were exposed from falling sparks of passing engines, took upon, or imposed upon, itself the duty of employing a servant, whose only duty seems to have been to keep water in the barrels on the platform for use in extinguishing fire and looking out, as the plaintiff’s witness himself says, “for falling fire sparks.” The testimony of Butler Napoleon, a witness for the plaintiff company, was as follows:

“Q. Had you been at tlie compress that day before the fire? A. Just about 15 or 20 minutes before. Q. Had you done any work in the compress building that morning? A. I had filled some barrels with water. Q. What was your duty about the compress? A. To keep the barrels filled up and keep a lookout' for fire, and clean up. Well, yes, sir; those were my duties, to notice for sparks and cinders. And I happened to slip off from the captain and go to dinner that day, and the train came in there oil me, and I know it was my place to stop, and that is the reason I stopped, because it is my business to look out for sparks and watch them. But I did get back to the burning. I couldn’t get back to the compress before the fire was all over everything. Q. You say you were some distance from the compress when the fire occurred? A. Yes, sir, Q. You had gone out to dinner? A. No, sir; I had done eat my dinner, I had started home. Q. You say that was your business to look out for fire, but you didn’t see Oapt. Miller, and you were slipping away? A. Yes, sir. Q. And you passed the engine on the track about 200 yards away from the compress? A. Yes, sir. Q. You were slipping off home were you? A. Yes, sir.

Further on in his testimony, Butler says: “The captain always told me to keep a lookout for sparks when the engine was running on the compress track.” Before this fire (or the fire in question) he had several times put out fire sparks that flew on the cotton. He says, if he had been up there with a bucket of water, that he could have done something to put the fire out. Fie says it was a matter of general talk and notoriety that there was danger from flying sparks, when there *786was switching in there, on account of cotton being close to the track, and it was his special duty to watch the cotton.

The evidence shows that Napoleon Butler was specialty employed to use his activities on the platform in protecting the cotton from the very falling sparks which seem to have set fire to the cotton, and he had slipped away and was quite a distance from the compress building when he first saw the fire consuming the cotton. Butler’s testimony shows that the compress company, in recognition and appreciation of such duty — of a reciprocal nature, as I have mentioned — as was suggested and imposed on it by or in the compress company’s knowledge of and consideration for the conditions and environments which were apparent to the compress company, and which* necessarily, attended the business activities of the company’s management in handling its patrons cotton on the platform.

The evidence shows that the management of the compress company in responding to an estimate of its sense of duty, to itself and the owner of the compress building, as well as to its duties as the bailee of the several owners of the cotton which was destroyed by fire, kept a man especially appointed to discharge a service which it seems, in its own estimate of things, it fairly owed to all persons concerned. Treating the compress company as such a bailee, it seeprs that a failure to have had such a service or duty, as was assigned to Butler, performed by some of its servants, would have been, under the circumstances, a. signal omission of the bailee’s obligations. If the compress company had been the actual owner of the cotton, and it was now suing the defendant railway company for damages, because of its negligence in setting the cotton on fire, I think the facts relating to Butler’s neglect of the special duties assigned to him would show a damaging-state of facts against the legal right of,the compress company to recover damages for negligence of the railway company. The service or duty which the compress company assigned to Butler seems to show or illustrate that company’s view and interpretation of the nature of its obligations, under all the circumstances, as a bailee'. It may be that the defendant railway company did not know of the presence of Butler, pr of the special duties which had been assigned tp Butler by the compress company; but the assumption by the compress company of such a duty as was assigned to Butler is very persuasive to show that it rightfully assumed some of the risks in the dangers of the situation. It is persuasive, too, to show that the compress company recognized, and was responding fairly for itself to, the nature of the reciprocal relations and obligations imposed on either of the litigant companies (treating the compress and railway companies as the litigants herein) by the apparent dangers inherent in the environments of the situation.

A new trial is granted.