s of the petition and the law of negligence in regard to fire, the burden was upon appellees to prove by a preponderance of the evidence that the fire which destroyed the house was communicated thereto either from a fire set by appellant's section crew to a pile of old cross-ties on the right of way, and failure to use due care to prevent its spread, or from a fire which originated on the right of way and failure of appellant's agents to use due care to follow it up and prevent its spread to the house after discovery of the fire. Mo. Pac. Ry. Co. v. Platzer, 73 Tex. 117, 11 S.W. 160, 162, 3 L.R.A. 639, 15 Am.St.Rep. 771; St. Louis, S.W. Ry. Co. v. Anderson (Tex.Civ.App.) 173 S.W. 908 (writ of error refused); Mo. Pac. Ry. Co. v. Donaldson, 73 Tex. 124, 11 S.W. 163; Rost v. Mo. Pac. Ry. Co., 76 Tex. 173, 12 S.W. 1131; Dillingham v. Whitaker (Tex.Civ.App.) 25 S.W. 724; Pfeiffer v. Aue, 53 Tex. Civ. App. 98, 115 S.W. 300; H. T. C. Ry. Co. v. Anderson, 44 Tex. Civ. App. 394, 98 S.W. 440; H. T. C. Ry. Co. v. Crook, 56 Tex. Civ. App. 28, 120 S.W. 594. It is true that no witness actually saw the appellant's section crew set fire to a pile of old cross-ties on the right of way Saturday afternoon, October 22, 1927; nor did any witness actually see where and when the fire started; but a pile of old cross-ties was seen burning that afternoon on the right of way, and the fire had spread from that point to tall dry grass and weeds, burning about 100 yards on the right of way and had spread over several acres of the pasture and pine woodland adjoining the right of way before any one discovered or took notice of the fire.
A contrary rule, however, is firmly established by the decisions of this state, and upon those decisions the assignments of error now under discussion must be overruled. See Mo. Pac. Ry. Co. v. Platzer, 73 Tex. 117, 11 S.W. 160, 3 L.R.A. 639, 15 Am.St.Rep. 771; Mo. Pac. Ry. Co. v. Donaldson, 73 Tex. 124, 11 S.W. 163; Rost v. Mo. Pac. Ry. Co., 76 Tex. 173, 12 S.W. 1131; Dillingham v. Whitaker, 25 S.W. 724; Pfeiffer v. Aue, 53 Tex. Civ. App. 98, 115 S.W. 300; H. T. C. Ry. Co. v. Anderson, 44 Tex. Civ. App. 394, 98 S.W. 440; H. T. C. Ry. Co. v. Crook, 56 Tex. Civ. App. 28, 120 S.W. 594. We deem it proper to discuss specially a proposition submitted under one of the assignments noted above and overruled, which is, in effect, that there was no evidence to prove that the fire originated through any act or omission of any of the defendant's employés. If, as suggested by this proposition, the rule announced in the decisions above noted, and under which the recovery was had, is limited to cases in which the origin of the fire is chargeable to the person against whom damages is sought, nevertheless the proposition is unavailing to appellant in this case for the following reasons: First, the assignment under which it is submitted does not present it; second, in applying the rule the court in his charge did not submit as a disputed issue whether or not the fire in the boarding car started through some act or omission of defendant's employés, but assumed that it was so started and no assignment of error is presented that the court erred in that assumption of fact; third, the