Page:North Dakota Reports (vol. 3).pdf/62

 cases placed on the calendar and tried. We think there is nothing in this point. The judge is authorizcd to call additional terms of court. Chapter 79, Laws 1891, § 10. There is nothing in the statute to limit the nature of the business to be transacted at such terms. They are as much terms of court as those fixed by the statute itself.

We now come to the merits of this litigation. Plaintiff had judgment below. It is contended by the defendant that although there is sufficient evidence to support the finding of the jury that sparks from defendant's engine set the fire which destroyed plaintiff's property, yet that, on the whole case, there was no question of negligence to submit to the jury. There was only one fire set out. We have already held that this fact raises a disputable presumption of negligence. Johnson v. Railroad Co., 1 N. D. 354; (48 N. W. Rep. 227.) Whether such a presumption has been fully met and overthrown by the defendant's evidence is, we think, in the first instance, a question of law. We do not think that an inference of negligence naturally arises from the mere fact that a single fire has been started by a passing engine. That locomotives in operation do emit sparks which set fires is a matter of common knowledge. The inference that the fire was accidently started is certainly as strong as the inference of negligence in the origin of the fire. But to prevent a denial of justice some of the courts have created an artificial presumption of negligence, to the end that the defendant may be compelled to produce the witnesses who are familiar with the facts on which the issue of negligence depends, that they may be subjected to full and searching cross-examination on all the phases of the case,— on all the possible grounds of negligence. Some courts have refused to go so far. To extend, this presumption of negligence beyond the reason for its existence would be irrational. It summons defendant to show that there was no negligence; and the evidence must fully meet every possible ground of negligence under the circumstances and the pleadings. But when the whole case, independently of this artificial presumption, shows that there