McCahill v. Kipp, 2 E. D. Smith (N. Y.), 413. And from the fact that horses got loose and ran away, negligence in fastening them may • be reasonably inferred. Strup v. Edens, 22 Wis. 432. See, also, Hum mell v. Weater, Bright. (Penn.) 133. That is not an inevitable accident which in any way results from the acts of the defendant or his servants. Goldey v. Pennsylvania R. R. Co., 30 Penn. St. 242.

But if a horse runs away without the fault of the driver, he is not answerable for the injury thereby occasioned. Kennedy v. Way, Bright. (Penn.) 186; Holmes v. Mather, L. R., 10 Exch. 261; S. C., 16 Eng. R. 384, note; Sullivan v. Scripture, 3 Allen, 564. Nor is the owner of a horse liable for injuries done by it purely from viciousness, while being driven by him or his servant, unless it appears that he had notice of its vicious disposition. Hammack v. White, 11 C. B. (N. S.) 588.

The fact that the driver of a horse drives him or stops him within fifty feet of a railroad crossing, and that the horse, frightened by the noise of the train, runs away and injures a person, does not itself show as matter of law want of due care on the part of the driver. Herrick v. Sullivan, 120 Mass. 576.

If an accident is caused by a defective vehicle or harness, this ia negligence in the owner, if the defect was known or ought to have been known by him. Thus, a master is held liable for an accident in consequence of the chain-stay of a cart breaking, when the horse, being frightened, ran away, causing damage, for he is guilty of negligence in not having good tackle. Welsh v. Lawrence, 2 Chit. 262. See Doyle v. Wragg, I Fost. & F. 7. So, if a master employs a known drunkard as a driver through whose negligence while intoxicated an injury is done to another, the master is liable. Sawyer v. Sauer,

10 Kans. 466.

A person who leaves a heavy mass of timber in the streets of a city unguarded is responsible to another person who is injured by its being blown down by the wind. Thomas v. Hook, 4 Phila. 119.

A traveler having before him the whole road free from obstructions, and having no notice of any vehicle behind him in season to stop or change his course, is at liberty to occupy any part of the road that he pleases. Foster v. Goddard, 40 Me. 64; Daniels v. Clegg, 28 Mich. 32. See, also, Brooks v. Hart, 14 N. H. 307. But it is a universal custom in this country for travelers to take the right-hand of the road when meeting, if practicable, and this rule is enforced by statute in many of the States so far as it respects travelers in vehicles or on horseback. The statute usually prescribes that travelers shall pass to the right of the "center of the road;" and this is construed to mean the

center of the traveled or worked part of the road. See Simmonson v. Stellenmerf, 1 Edm. (N. Y.) 194; Kennard v. Burton, 25 Me. 39; Smith v. Dygert, 12 Barb. 613; Jaquith v. Richardson, 8 Metc. 213. A mail stage coach is protected by act of congress from obstruction, but is subject in all other respects to the laws of the road. Bolton v. Colder, 1 Watts (Penn.), 360. But the "law of the road," as it is commonly termed, does not apply to buildings that are being moved through a public highway. Graves v. Shattuck, 35 N. H. 257. And a person on foot or on horseback cannot compel a teamster, who has a heavy draught, to leave the beaten part of the road, if there is sufficient room to pass; and this rule applies where a person on horseback meets a buggy carrying three persons drawn by a single horse. Beach v. Parmeter, 23 Penn. St. 196. And see Grier v. Sampson, 27 id. 183. Where a public way is impassable, and where the act is done as the only means of extricating a team from a mudhole or bog therein, the pulling down of a fence at the side of the way, and passing over the adjoining land, is a necessary and justifiable act. Hedgepeth v. Robertson, 18 Tex. 858. And see Kent v. Judkins, 53 Me. 160. The law of the road does not apply to one driver seeking to pass another on the same road (Bolton v. Colder, 1 Watts, 360; Avegno v. Hart, 25 La. Ann. 235; 13 Am. Rep. 133); nor has it any application to the meeting of vehicles on a railway track with vehicles of a different kind (Hegan v. Eighth Avenue Railway Co., 15 N. Y. [1 Smith] 380); nor in favor of persons crossing or turning into the road. Lovejoy v. Dolan, 10 Cush. 495.

When two persons, each without any better right than the other, strive to occupy the same place in the public highway, he is in the wrong who first uses force. Goodwin v. Avery, 26 Conn. 585.

Highways may properly be used for other purposes than the accommodation of the public travel, provided such use be not inconsistent with the reasonably free passage of the public over them. Thus, the streets of a town may be used for the temporary deposit of goods in their transit to the storehouse, or for wharfage, regard being paid to their evident object and purpose. Haight v. Keokuk, 4 Iowa, 199. And it is held that to leave a horse fastened only by a strap and weight while the wagon is backed up to the sidewalk to be loaded, although the team thereby extends half across the highway and is liable to be hit by a runaway, is not, as a matter of law, negligence (Greenwood v. Calla han, 111 Mass. 298); and the owner of the team may maintain an action against one who injures the horse by negligently driving another wagon against it, when by exercising more care he might have avoided doing so. Id.; Steele v. Barkhardt, 104 Mass. 59; S. C., 6 Am. Rep.

191. So, the fact that a driver is on the wrong side of the road will not excuse another for negligently driving into him. Harlow, 3 Allen, 176; Clay v. Wood, 5 Esp. 44.

Spofford v.

Persons driving cattle through the streets of a city are bound to use the utmost care and diligence to avoid injuries to people who are passing through the street. Their liability is like that of a common carrier. Ficken v. Jones, 28 Cal. 618.

In England, foot passengers take the right-hand when meeting, but an opposite rule applies to horses and vehicles, which always take the left of the road. And the rule applies to saddled horses as well as carriages. Turley v. Thomas, 8 Carr. & P. 103. The mere fact of a man's driving on the wrong side of the road is no evidence of negligence in an action against him for running over a person who was crossing the road on foot. Lloyd v. Ogleby, 5 C. B. (N. S.) 667. It is as much the duty of persons crossing a street or a road to look out for passing vehicles, as it is for the drivers of those vehicles to be vigilant in not running against persons crossing. Cotton v. Wood, 8 C. B. (N. S.) 568. See post, tit. Ways.

§ 11. Fences. See ante, Vol. 3, tit. Fences. And see post, 684, $17.

§ 12. Fire. One who designedly sets fire to any thing upon his own premises must use ordinary care to avoid injury thereby to the property of another. Filliter v. Phippard, 11 Q. B. 347; Dewey v. Leonard, 14 Minn. 153. And it has been held that a man who negligently sets fire on his own land, and keeps it negligently, is liable to an action at common law for any injury done by the spreading or communication of the fire directly from his own land to the property of another, whether through the air or along the ground, and whether he might or might not have reasonably anticipated the particular manner and direction in which it is actually communicated. Higgins v. Dewey, 107 Mass. 494; S. C., 9 Am. Rep. 63. See, also, Fahn v. Reichart, 8 Wis. 255; Webb v. Rome, etc., Railroad Co., 49 N. Y. (4 Sick.) 420; S. C., 10 Am. Rep. 389; Averitt v. Murrell, 4 Jones (N. C.), 323; Cleland v. Thornton, 43 Cal. 437. So, if a party makes a fire for a necessary purpose, upon or near the grounds of another, but ligently leaves it, with combustible material about it, and the fire spreads and destroys adjacent property, the party building the fire is liable for the damages thereby occasioned. Id. See Calkins v. Barger, 44 Barb. 424.

neg

The burning of a fallow and of superincumbent combustible matter on the surface is of frequent necessity in husbandry, and is a lawful act, unless the fire be set at an improper time or be carelessly managed.

Miller v. Martin, 16 Mo. 508; Hanlon v. Ingram, 3 Iowa, 81; Hewey v. Nourse, 54 Me. 256; Gilson v. North Grey, etc., 33 Upper Can. Q. B. 128; Hays' Administrator v. Miller, 6 Hun (N. Y.), 320; S. C. affirmed, 10 id. xiv. Ordinary care must be exercised to avoid the spread of the fire upon the land of others, but the mere fact that the person making a fire did not constantly watch it does not tend to prove negligence. Calkins v. Barger, 44 Barb. 424. The burden of proof is upon the party complaining to show negligence, of which the fire itself is no evidence. Bachelder v. Heagan, 18 Me. 32; Tourtellott v. Rosebrook, 11 Metc. (Mass.) 460; Hinds v. Barton, 25 N. Y. (11 Smith) 544. But the rule is otherwise when one sets fire on land which does not belong to him, in which case the burden of proof is on the defendant to show that he had good cause for firing the land; and especially is this so, with fire started on prairies, or other wild landswhere its progress is likely to be attended with great destruction. Finley v. Langston, 12 Mo. 120. And see Armstrong v. Cooley, 5 Gilm. (Ill.) 509.

One who uses a steam engine on his premises is bound to the use of ordinary care in confining sparks, especially if he burns wood. The want of such care is strong evidence of negligence, and where a steam engine was used without putting on a spark-catcher, and the sparks set fire to a neighbor's farm buildings, the person using the engine was held liable for the damage done. Teall v. Barton, 40 Barb. 137; S. C. affirmed, 25 N. Y. (11 Smith) 137.

It has been held that the negligent burning of a house, and the spreading of the fire to a neighboring house, and the burning thereof, do not give the owner of the last house a cause of action against the owner of the house in which the fire originated; the damage in such case being deemed too remote. Ryan v. New York Central Railroad, 35 N. Y. (8 Tiff.) 210. So, an engine on a railroad negligently set fire to a house, the fire from the house communicated to another at some distance from it, which was consumed with all its contents, and it was held that the railroad company were not liable for damages for the last building and its contents. Pennsylvania R. R. Co. v. Kerr, 62 Penn. St. 353; S. C., 1 Am. Rep. 431. See, also, Macon R. R. Co. v. MeConnell, 27 Ga. 481. But this rule is not adopted by the courts in some of the States. Thus, it is held in Illinois, if fire is communicated from a railway locomotive to the house of A., and thence to the house of B., it is not a conclusion of law that the fire sent forth by the locomotive is to be regarded as the remote, and not the proximate cause of the injury to B., but a question of fact, to be determined in each case by the jury under the instructions of the court. Fent v. Toledo, etc.,

Railway Co., 59 Ill. 349; S. C., 14 Am. Rep. 13. And in a recent case in Kansas, it is held that where two fires are caused by sparks emitted from one of the defendant's engines, and neither of the fires is kindled on the land of the plaintiff, but each is kindled on the land of a differen owner, and these two fires spread, finally uniting, and then pass over the property of several landed proprietors and finally reach the plaintiff's property three and a half to four miles distant from where the fires were first kindled, and there do the damage of which the plaintiff complains, the damage is not too remote to be recovered. Atchison, etc., R. R. Co. v. Stanford, 12 Kans. 354; S. C., 15 Am. Rep. 362. See, also, Kellogg v. Chicago, etc., Railway Co., 26 Wis. 223; S. C., 7 Am. Rep. 69; Pennsylvania R. R. Co. v. Hope, 80 Penn. St. 373; S. C., 21 Am. Rep. 100; Perley v. Eastern R. R. Co., 98 Mass. 414; Henry v. Southern Pacific R. R. Co., 50 Cal. 176.

A railroad company, having no express authority to use steam or other power involving the use of fire, is held liable for the escape of fire from its engines, without respect to the question of negligence. Jones v. Festiniog Railway Co., L. R., 3 Q. B. 733. And this is so by statute in some of the States in the case of chartered railroad companies. See Stearns v. Atlantic, etc., R. R. Co., 46 Me. 95; Hooksett v. Concord, etc., R. R. Co., 38 N. H. 242; Ingersoll v. Stockbridge, etc., R. R. Co., 8 Allen, 438. But in the absence of a statute imposing the liability, a railroad company, authorized by its charter to use steam power, is not liable for injuries unavoidably produced by keeping fire for the purpose of generating steam. Burlington, etc., R. R. Co. v. Westover, 4 Neb. 268; Freemantle v. London, etc., Railway Co., 10 C. B. (N. S.) 89; Vaughan v. Taff Vale Railway Co., 5 Hurlst. & N. 679. And where a party seeks to recover on account of injuries caused by fire communicated from its engines, the burden of proof is upon him to show negligence in the company. Philadelphia, etc., R. R. Co. v. Yerger, 73 Penn. St. 121; Indianapolis, etc., R. R. Co. v. Paramore, 31 Ind. 143. Negligence on the part of the company will not be presumed from the mere fact of injury. McCummons v. Chicago, etc., Railway Co., 33 Iowa, 187. But see Burke v. Louisville, etc., R. R. Co., 7 Heisk. (Tenn.) 451; S. C., 19 Am. Rep. 618; Coale v. Hannibal, etc., R. R. Co., 60 Mo. 227. Thus, where the injury complained of was caused by the engine's coals being emptied upon the track, and this act was found to be necessary, and to have been carefully done, it was held that the plaintiff could not recover. McCready v. South Carolina R. R. Co., 2 Strobh. (S. C.) 356. But where coals, negligently dropped from the defendant's locomotive, set fire to the