ration between evidence which thus tends to establish the issue, or from which, in accordance with ordinary experience, a reasonable inference may be drawn as to the principal matter in dispute, and evidence of facts simply collateral. The last class of evidence is not admissible. 1 Greenl. Ev. 448."

In the aspect of the case most favorable to defendant, there is no evidence in the record that the fire which caused the destruction of plaintiff's crop was caused by defendant's engine, other than the fact the fire commenced, or was seen, very soon after the engine passed, and that a high wind was blowing. As an inference from these facts, considered with or without reference to evidence as to the character of the engine, its management, etc., the jury may have been authorized to find that the engine caused the fire. Conceding evidence that engines of defendant communicated fire to other property on other occasions would tend to show negligence, and to render it more probable that the fire was, in this case, so communicated, can facts from which a similar inference might be drawn give greater force to the inference that the fire which destroyed the plaintiff's property came from the defendant's engine, because the engine had just passed and a wind was blowing? The witness did not swear that, on the occasion to which he testified, he saw sparks issuing from the smokestack. Certainly such evidence approximates very closely the line which separates evidence merely collateral and independent from evidence bearing upon the issue made by the pleadings. It may be said to be an attempt to add to a probability by another probability; to support an inference by an inference. Yet, if it is permissible by direct proof to show that other fires were caused by defendant's engines, is it not permissible to show facts tending to prove that other fires were so caused? If many fires had occurred along the line of defendant's road, under circumstances like those appearing in the present case, the fact would have tended to prove negligence in the management of defendant's business, and that this particular fire was started by sparks from the locomotive. Proof of a single fire should have much less weight than proof of many fires, but we cannot say it was absolutely irrelevant.

In

The defendant moved for a nonsuit on the ground that plaintiff had given no evidence of negligence. In some of the states (Maine, Massachusetts, New Hampshire) railroad companies are made by statute absolutely liable for injuries caused by fire proceeding from their engines, irrespective of their negligence. Shear. & R. Neg. 344. Our attention has been called to no such statute of this state. the absence of statute, the rule is that, inasmuch as railroad companies, authorized by charter to use steam-power, have necessarily the right to use fire as a means of generating steam, and are therefore not liable for fires unavoidably produced by keeping fire for such a purpose, “one who seeks to recover on account of injuries caused to his property by sparks, smoke, or coal escaping from a locomotive, the use of which is authorized by law, must prove some negligence v.8P,no.3-12.

It

apart from the mere fact of injury," etc. Shear. & R. Neg. 332. has been said, however, that the plaintiff may rely upon a presumption as evidence of negligence. In the opinion of the learned writers already quoted, the rule most just and sustained by the best authorities is:

"The origin of the fire being proved, it rests upon the defendant to show that it used all necessary precautions to avoid doing such mischief. The natural presumption would be that, by the use of ordinary care, engines could be constructed so as to avoid such consequences; and, if that is so, a presumption of negligence arises from their not being so constructed." Section 333.

In the case at bar it is not necessary, however, to appeal to the presumption of negligence mentioned by Shearman & Redfield. Even where that doctrine has been denied "it is held that a presumption of negligence is raised by evidence that engines can be, and are sometimes, so made as to retain their sparks." Id. In Hull v. Sacramento Valley R. Co., 14 Cal. 387, it was held the fact that fire was communicated from defendant's engine to plaintiff's grain, with proof that this result was not probable from the ordinary working of the engine, was prima facie proof of negligence, sufficient to go to the jury. And so it was decided by the supreme court of North Carolina that although the position is not tenable that whenever damage is done the law implies negligence, yet when the plaintiff shows damage resulting from the act of the defendant, which act, with the exercise of proper care, does not ordinarily produce damage, he makes out a prima facie case of negligence. Herring v. Wilmington & R. R. Co., 10 Ired. Law, 402; and see, also, Piggot v. Eastern Counties Ry. Co., 3 C. B. 228.

In the case before us the plaintiff proved by the witness A. J. Stevens, the general master-mechanic of the Central Pacific Railroad Company, that a perfect engine, properly equipped and properly run, will not ordinarily throw out sparks sufficient to start a fire. The plaintiff also proved by Joseph Erhart, the engineer in charge of the engine when the fire occurred, that a little more than two weeks afterwards some repairs or changes were made by defendant in the engine. At the time of the fire, the trap-door (or opening into the smokestack) had two nettings one inch apart. One of these was removed to the top of the smoke-stack. This testimony was objected to on the ground that it was immaterial and irrelevant.

We cannot say the evidence was totally irrelevant. It might fairly be argued that more sparks would issue from the smoke-stack before the change. The valve being opened, and the draft increased, live cinders lying between the two nettings (one inch apart) might be forced beyond the upper netting. In such case it might be argued that more sparks would escape from the stack than if there was a larger space between the two nettings in which the cinders or sparks might die out. The plaintiff also gave evidence tending to prove that the Vacaville (the locomotive in question) was a small, light engine,

not more than half the weight of engines ordinarily employed, and that opposite the place where the fire commenced it was pulling a long train up a "grade;" that "she had to exert herself to pull much of train;" that an engine with short flues is more liable to throw fire through the smoke-stack than one with longer flues,-the fire having less distance "to travel;" that there was a curve near the place where the fire destructive of plaintiff's property occurred, which increased the pull up the ascent; and that when attacking a grade it was usual to give more steam,-the effect of the exhaust being to increase the draft.

We think there was sufficient evidence of negligence to send the case to the jury. The plaintiff having made out his case prima facie, it remained for the defendant to overcome it by showing that it had used all reasonable care and diligence in securing a proper engine, and in the management of it, to prevent the happening of fires. Taking the whole case as presented by the parties, there was a substantial conflict of evidence, with respect to the issue of negligence, and, in accordance with the established rule, we are not authorized to set aside the verdict. Judgment and order affirmed.

We concur: MYRICK, J.; MORRISON, C. J.; THORNTON, J.; McKEE, J.

NOTE.

Railroads-Negligent Fires.

1. WHAT AMOUNTS TO NEGLIGENCE. Negligence is a failure to do what a reasonably prudent person would ordinarily have done under the circumstances of the situation, or doing what such person under existing circumstances would not have done. Reasonable or proper care must have reference to surrounding circumstances, which may often demand a higher or lower degree of care and diligence of a party. Fuller v. Citizens' Nat. Bank, 15 Fed. Rep 875; Sunney v. Holt, Id. 880; Backus v. Start, 13 Fed. Rep. 69; Crandall v. Goodrich Transp. Co., 16 Fed. Rep. 75; Harris v. Union Pac. R. Co., 13 Fed. Rep. 591; Gravelle v. Minneapolis & St. L. Ry. Co., 10 Fed. Rep. 711; Miller v. Union Pac. Ry. Co., 17 Fed. Rep. 67; Johnson v. Chicago & N. W. Ry., 5 Ń. W. Rep. 886; Brown v Congress & Baker St. Ry. Co., 13 N. W. Rep. 494.

2. PRESUMPTION OF NEGLIGENCE. Negligence cannot be presumed; it must be proven. Brown v. Congress & Baker St. Ry. Co., 13 N. W. Rep., 494. Negligence may be imputed to a defendant railway company by a jury from evidence that combustible materials have been allowed to accumulate and remain upon its land, liable to be ignited by sparks from its engines, and to communicate fire to property upon adjacent lands. Clarke v. Chicago, St. P., M & O. Ry. Co., 23 N. W. Rep. 536. A railroad company permitting grass and weeds to remain on its right of way is not negligence per se, but may be under some circumstances, and whether it is or not is a question for the jury. White v. Missouri Pac. Ry. Co., 1 Pac. Rep. 611. In an action for damages for loss by fire set by a locomotive-engine, the fact that other fires had caught on the right of way of defendant will not warrant the presumption or inference that the fire in question was communicated from that point. Babcock v. Chicago & N W. R. Co., 13 N. W. Rep. 740. Setting fire from a locomotive-engine does not create a presumption of negligence on the part of the railroad company. Babcock v. Chicago & N. W. R. Co., 13 N. W. Rep. 740. But the fact that the same engine has set other fires on the same day at various places is presumption that said engine was out of repair, or not properly inanaged. Slossen v. Burlington, C. R. & N. Ry. Co., 14 N. W. Rep. 244.

3. LIABILITY. A railroad company is liable for fires negligently caused from sparks from engine, Lewis v. Chicago, M. & St. P. R. Co., 10 N. W. Rep. 336; see Sibley v. Northern Pac. R. Co., 21 N. W. Rep. 732; and where fire is negligently set by defendant while operating the road, it is immaterial who owned the road. Slossen v. Burlington, C. R. & N. Ry. Co., 14 N. W. Rep. 244.

It is not necessary, in order to charge the company with the responsibility, that its negligence should be the efficient cause of the injury; if the injury would not have oc

curred but for such negligence, that is enough. Hayes v. Michigan Cent. R. Co., 4 Sup. Ct. Rep. 369. But railroad companies are not liable for purely accidental fires caused by their engines, Atchison, T. & S. F. R. Co. v. Riggs, 3 Pac. Rep. 305; or where plaintiff's negligence contributed directly to the burning of his property. Gibbons v. Wisconsin Valley R. Co., 22 N. W. Rep. 533. And in an action for the destruction of property (burning of a stack of grain) by a fire resulting from the negligent act of a railroad company, it is competent for defendant to aver and prove that such destruction was accidental, and without fault on its part. Slosson v. Burlington, C. R. & N. R. Co., 1 N. W. Rep. 543. Thus, where an action was brought against a railroad company for injury to stock, and it appeared that the foreman had gone over the road in the forenoon; that the fence burned about noon; that the cattle wandered upon the track, and were killed about 6 o'clock; and that the company had no notice or knowledge of the fence having burned until the next morning,-it was held that the railroad company was not liable. Toledo & C. S. Ry. Co. v. Eder, 7 N. W. Rep. 898.

The negligence of the railroad company must usually be the proximate cause of the fire causing the loss or injury, or there can be no recovery. Haff v. Minneapolis & St. L. Ry. Co., 14 Fed. Rep. 558. But it was held, in a case where sparks from a railroad engine set fire to an elevator near the track, from which the property sought to be recovered for caught fire and was destroyed, that the railroad company was liable. Small v. Chicago, R. I. & P. R. Co., 8 N. W. Rep. 437.

Railroad companies are not liable for fires resulting from the operation of their roads, if they are free from negligence, Libby v. Chicago, R. I. & P. R. Co., 2 N. W. Rep. 982; and the burden of proof is on the plaintiff to show negligence. Denton v. Chicago, R. I. & P. R. Co., 2 N. W Rep. 1093. Where the engine which it is claimed set the fire is properly constructed and equipped, and provided with all the approved appliances for preventing the escape of fire, and the engine is properly operated, the company will not be liable. Gibbons v. Wisconsin Valley R. Co., 22 N. W. Rep. 533; Smyth v. Stockton & C. R. Co., 4 Pac. Rep. 505.

4. A QUESTION OF FACT FOR JURY. The question of negligence is usually one of fact, and is for the jury to determine. Sibley v. Northern Pac. R. Co., 21 N. W. Rep. 732; Butcher v. Vaca Valley & C. L. R. Co., 5 Pac. Rep. 359; Myers v. Indianapolis & St. L. R. Co., 1 N. E. Rep. 899; Miller v. Union Pac. Ry. Co., 17 Fed. Rep. 67; Hayes v. Michigan Cent. R. Co., 4 Sup. Ct. Rep. 369; Johnson v. Chicago, M. & St. P. Ry. Co., 13 N. W. Rep. 673. Thus, permitting grass and weeds to remain on right of way may or may not be negligence; but is not per se negligence, and is a question for jury. White v. Missouri Pac. Ry. Co., 1 Pac. Rep. 611. And where a fire was produced from kerosene lamp upon an iron bracket attached to the window, left burning in a telegraph office after midnight, with no one to care for it, and a fire resulted therefrom which burned other property, it was held that it was not negligence to so leave the lamp. Wood v. Chicago, M. & St. P. Ry. Co., 8 N. W. Rep. 214.

It may be laid down as a general rule that negligence is a question of fact to be found by the jury, and in order to recover the plaintiff must establish, by a fair preponderance of proof, that the defendant was guilty of negligence, and that the injury complained of was the natural and ordinary result of such negligence, and that the negligence was the proximate cause of the injury, which a reasonably prudent and cautious person ought to have apprehended might result from the act. Harris v. Union Pac. R. Co., 13 Fed. Rep. 591.

5. EVIDENCE. Negligence must be proved as set forth in pleadings, Carter v. Kansas City, St. J. & C. B R. Co., 21 N. W. Rep. 607; Miller v. Chicago & N. W. Ry. Co., 23 N. W. Rep. 756; but where the complaint in an action against a railroad company alleged the destruction of the plaintiff's property by a fire kindled on his premises by sparks which proceeded directly from defendant's locomotive to plaintiff's land, but the proof showed that such property was destroyed by a fire kindled on the adjoining land by sparks from the same source, which fire moved onto plaintiff's land, this held not to constitute a material variance between the proof and the allegation. Butcher v. Vaca Valley & C. L. R. Co., 5 Pac. Rep. 359.

In an action for loss caused by reason of fire set by sparks from engine, evidence may be introduced to show a "negligent habit" on defendant's part, on or about the time of the fire, as respects the construction and use of engines. Davidson v. St. Paul, M. & M. Ry. Co., 24 N. W. Rep. 324. And it may be shown that prior and subsequent to the fire which produced the injury complained of other fires had been kindled by defendant's engines. Butcher v. Vaca Valley & C. L. R. Co., 5 Pac. Rep. 359.

When it was shown that a netting of wire of a certain character was used to prevent the escape of sparks from the smoke-stacks of the engines, the company should be allowed to prove why a finer netting could not have been used. Carter v. Kansas City, St. J. & C. B. R. Co., 21 N. W. Rep. 607. And any person who, from his situation and the nature of his occupation, appears to have had special advantages, opportunities, and means for observing the nature, operation, and effect of sparks issuing from coalburning engines, and appears also to speak from his own observations so made, is

competent to testify as to the size and effect of sparks issuing from a coal-burning engine, the time during which they would remain live, and the distance at which fire. could and could not be communicated by them. Davidson v. St. Paul, M. & M. Ry. Co., 24 N. W. Rep. 324.

In an action under the Minnesota statute, against a railroad company, to recover damages for destruction of property caused by sparks from engine, the burden of proof is on the plaintiff to show that the fire was caused as alleged; but when this is done, a prima facie case of negligence is made out, and the burden of proof is shifted to the company to rebut the presumption of negligence thus raised by proof that it performed its whole duty in the premises, and did not use a defective engine, or manage it in an unskillful manner. Niskern v. Chicago, M. & St. P. Ry. Co., 22 Fed. Rep. 811. And where the measure of care to be required in a certain case can be determined by custom of others, there must be some evidence of custom to make the same applicable. Slosson v. Burlington, C. R. & N. R. Co., 1 N. W. Rep. 543.

(67 Cal. 585)

In re Estate of SKERRETT.
Appeal of SKERRETT and others.

Filed October 9, 1885.

WILL-PROBATE OF DEED AND LETTER AS.

(No. 9,560.)

(No. 9,735.)

Decedent executed a deed of gift to his sister, but did not deliver the same. He then wrote to his sister, telling her of the fact of the execution, and inclosing a copy of the deed in his own handwriting. In the letter he said: "We all know life is uncertain, and we don't know the moment we may be called away. I therefore want you to know you are provided for under any circumstances. My intention is to provide for you while I live, and if it should please God to call me away, you will have your own property to depend on, sufficient to make you independent while you live." The letter and copy of the deed were offered together for probate as the will of decedent. Held, that they constitute a good olographic will when taken together, being wholly written by the testator, and dated and signed by him, and the words above showing the animus testandi; but that, when taken separately, neither is sufficient as a will, nor is the original deed, which was neither written by the testator nor dated nor delivered, admissible as such.

In bank. Appeal from superior court, city and county of San Francisco.

Joseph Hutchinson, Lloyd & Wood, M. C. Hassett, and P. G. Murphy, for appellant in No. 9,735.

A. H. Loughborough, for respondent in No. 9,735.
A. H. Loughborough, for appellant in No. 9,560.

Joseph Hutchinson, Lloyd & Wood, M. C. Hassett, P. G. Murphy, Winans & Belknap, and Wright & Cormac, for respondents in No. 9,560. MYRICK, J. These appeals will be considered together. No. 9,560 is an appeal from an order refusing to admit an instrument to probate as the will of the deceased; and No. 9,735 is an appeal from an order admitting an instrument to probate. The following appears in the bill of exceptions in appeal No. 9,560:

"Be it remembered that on the thirteenth day of September, 1883, there was filed with the clerk of said superior court a certain instrument in writing, which was in the words and figures following, to-wit:

"This indenture made this twenty-sixth day of April. one thousand eight hundred and eighty-one, between Nicholas Skerrett of the city and county of San Francisco, state of California, party of the first part, and Anna J. Skerrett, his sister, of London, England, party of the second part: