SAVANNAH, FLORIDA & WESTERN RAILWAY COMPANY, APPELLANT,

v.

GEO. W. TIEDEMAN & BRO., APPELLEES

Mabry, J.:

Error is assigned on the ruling sustaining the demurrer of plaintiffs below to the second plea of the defendant, but we discover no error in this respect.

Where negligence is the basis of liability it must be alleged and proved before recovery can be had. Walsh vs. Western Ry. Co. of Florida, 34 Fla. 1, 15 South. Rep.

686. The rule announced in Jacksonvillle, T. & K.

W. Ry. Co. vs. Peninsular Land T. & M. Co., 27 Fla. 1, 9 South. Rep. 661, is that the mere emission of sparks from a railroad locomotive, or the mere setting out of fires thereby,' is not, per se, evidence of negligence upon the part of the company; but when the emission is of such character as is inconsistent with the common experience or the known efficiency of approved spark arresters in general use and properly used, it is evidence of negligence. The emission of sparks of unusual size, or both of unusual size and in unusual quantities, is evidence sufficient to raise the-presumption of negligence and throw upon the company the burden of removing such presumption.

The facts in the case referred to authorized the giving of a charge embodying the rules of law stated, but in the-present case there is an entire absence of any proof as to the character or quantity of sparks emitted from the locomotive of appellant. The portion of the charge excepted to, and which is-numbered 2 in the statement of the case, announces-views as to the presumption of negligence in harmony with the rule adopted in Jacksonville, T. & K.

W. Ry. Co. vs. Peninsular Land T. & M. Co., supra, and if based upon sufficient facts would be sound. It is,, however, error for the court to submit a case to the-jury for a finding on facts not put in evidence, and if it is done under circumstances calculated to prejudice-the opposite party the verdict will be set aside. This principle is illustrated in the case of Jacksonville Street Ry. Co. vs. Chappell, 21 Fla. 175, where the-charge to the jury was that if they believed from the-evidence that if apparent to the oar driver that the plaintiff when he entered the car was in a crippled condition, having to use a cane or crutches to aid him in moving about, then it was the duty of the driver to-use a greater degree of care than in case of an apparently well and sound passenger, and it was held to-be error, there being no testimony showing that it was-apparent; to the driver that the i>laintiff was a cripple or disabled. We are of opinion that it was error for the court to say to the jury that if they found from the evidence that emission of sparks was such as was inconsistent with the common or known efficiency of approved spark-arresters in general and properly used, they could infer negligence-against the defendant, when no testimony was submitted as to an emission of sparks inconsistent with the common or known efficiency of approved sparkarresters in general and properly used. To this extent it is a charge on facts not proven, and was, therefore, not authorized. Again, in the portion of the charge referred to, the court, after telling the jury they might infer negligence if they believed certain facts not proven, proceeded to say the defendant might rebut the inference of negligence by showing affirmatively that at the time the engine was not dangerous to property on the line of road and was properly con•structed with approved appliances, and skillfully and •carefully handled. We have been unable to find any authority to sanction the view that in order to rebut the presumption of negligence the company must show that its engine was not dangerous to property, and also that it was properly constructed with proper appliances, and skillfully and carefully handled. No authority that we have seen has gone to the extent of holding that it is the duty of railroad companies to try to construct and operate engines that will emit no sparks whatever. That feat has not yet been accomplished in the progress of mechanical development, so far as we know. The portion of the charge objected to was erroneous, and, of itself, necessitates a reversal of the judgment.

In the portions of the charge objected to, and indicated as numbers 1 and 3, in the statement, it will be seen that, in submitting to the jury the question of the company’s negligence, the court has much to say about the duty of defendant^ use reasonable care and diligence to prevent combustible material from accumulating on and near the right of way of the railroad. There is no allegation in the declaration that the company negligently permitted combustible material to remain on its right of "way, and by means thereof fire was communicated to the property of plaintiffs, but the averment, in effect, is that the company by its servants and agents so negligently managed and operated .one of its engines as that sparks escaped therefrom and come in contact with, plaintiffs’ property, and thereby destroyed it. A plaintiff is confined in his-recovery to the cause of action alleged, and the court should not go outside of the issues in the pleadings in charging the jury. Jacksonville, T. & K.

W. Ry. Co. vs. Neff, 28 Fla. 373, 9 South. Rep. 653; Wilkinson vs. Pensacola & Atlantic R. R. Co., 35 Fla. 82, 17 South. Rep. 71.

We entertain serious doubt as to the sufficiency of the evidence certified to us to sustain the verdict in this case, but the reversal is on the grounds stated above. The judgment will be reversed.