L Railroad Companies—Negligence—Setting Out Fires—Defenses.

One who, without permission, has out cord wood from public,‘ lands, and piled it along a railroad, and who is in actual possession thereof, and engaged in selling it for his own benefit, may recover its full value, if negligently destroyed by fire from a locomotive; for the railroad company cannot justify its negligence by showing that the plaintiff was a trespasser, or question his title without, connecting itself with the true title.

2. Same—Evidence as to Other Fires.

Evidence of other fires, at other points on the road, and at other times, both ‘ before and after the destruction of the wood, though set by other locomotives, was admissible, as tending to show the possibility, and consequent probability, that a locomotive caused the fire, and to show a negligent habit of the officers and agents of the railroad company.

3. Same—Evidence as to Combustibles on Track.

As Comp. St. Mont. p. 830, § 719, makes it the duty of a railroad company to keep its track and right of way, to the distance of 100 feet on each side, free from dead grass, weeds, and other combustible material, and declares a failure to do so prima facie evidence of negligence on its part, evidence that the right of way and track, at points other than that at which the fire wa3 set out by its locomotive, but in the immediate neighborhood, were incumbered by dead grass and other combustible material, is admissible.

4. Same—Contributory Negligence—Burden of Proof.

It was incumbent upon the railroad company to prove, by a preponderance of evidence, that plaintiff was guilty of contributory uegligenoe; and plaintiff’s failure to clear the brush and other combustible material out of an open draw, through which the fire was communicated to the wood, did not shift the burden of proof, for plaintiff was not bound to clear the ground around bis woodpile.

5. Same—Proximate Cause.

A simple change in the direction of the wind could not be considered as disturbing the unbroken connection between the negligence of the railroad company and the destruction of the wood, and it was in the province of the court to instruct the jury that it was not an intervening cause.