Page:North Dakota Reports (vol. 3).pdf/64

 regarded as insufficient to disprove negligence, because of the relation they sustain to the defendant to the litigation, then in every case the question of negligence must be left to the jury, although there is nothing to support a finding of negligence, save an arbitrary presumption, not founded in reason, and adopted merely to compel a full disclosure by the railroad of all the facts surrounding the case.

We think the presumption was fully met, and it only remains to be considered whether there was any evidence tending to show negligence. After this presumption was overthrown, all that seems to be urged as supporting the claim of negligence is the fact that the fire started 118 feet from the track. But there is no evidence that this is an unusual occurrence, or that it is at all inconsistent with the exercise of due care. We cannot say that the mere fact that a fire was set that distance from the track indicates negligence in any respect. The wind was blowing very hard, and we cannot say, in the absence of testimony to that effect, that a spark, which, without fault on the part of the defendant, might have escaped through the meshes of the wire netting, could not have been carried 118 feet from the track, and set a fire, as well as 50 feet, and set a fire. The time consumed in the flight of a spark 118 feet through the air must, with a high wind blowing, be scarcely appreciable. There is nothing in the evidence to show that it would require an unusually large spark to live through such a flight, and start a fire. We have examined many cases, but, as each case depends upon its own peculiar facts, it would be useless to cite them. We will, however, refer to one which is confidently relied on as an authority. It is Greenfield v. Railroad Co., 49 N. W. Rep. 95,—an Iowa case. The opinion is not satisfactory in its reasoning. The chief thought running through the opinion is that defendant failed to overthrow the presumption of negligence, because there might have been other particulars in which defendant might have been negligent, aside from defects in the engine or in its construction, and aside from carelessness in operating it. In what such negligence could