was so negligently and unskillfully handled that fire escaped from it; but, as we have already observed, there was no attempt to substantiate the allegation by proof in its support. The answer of defendant denied negligence in this regard, and the issue was with plaintiff to establish its existence. This he failed todo. There was no evidence whatever introduced as to the manner in which the engine was managed and operated, and therefore nothing upon which the court could properly base a charge as to negligence in its operation. The instruction itself considered as an abstract proposition of law, was doubtless correct; but it was not applicable to the facts upon the trial.” We think this position is untenable. Counsel is mistaken in assuming that there was no evidence in the case tending to show negligence or unskillfullness in the management of the engine at the time the fire was emitted; the evidence tending directly to show that the fire which caused the damage was thrown out from one of defendant’s passing trains. We hold that this evidence, though purely circumstantial, is, under the better authority, sufficient, prima facie, to establish defendant’s negligence both as to the character of the machinery and appliances used, and as to the manner of its use and management at the time the fire was thrown out from the train.
The considerations upon which this rule rests are familiar to the profession, and need not be repeated here. The reasons upon which the rule is founded apply as strongly to the management of the machinery as to its character. There is much conflict of authority upon the point, but this court will adhere to the rule as above stated, as most conducive to the ends of justice. See Kelsey v. Railway Co., (S. D.) 45 N. W. Rep. 207, and authorities there cited; White v. Railway Co., (8. D.) 47 N. W. Rep. 146. The prima facie case of negligence in operating the machinery and appliances used by the defendant upon the train in question, made by the circumstantial evidence, as before stated, was not overcome or attempted to be refuted by any evidence offered in defendant’s behalf. Hoffman v. Railway Co., (Minn.) 45 N. W. Rep. 608. It follows that the trial court correctly and appropriately called attention to this feature of the case. The law as laid down was not only abstractly
