The opinion of the court was delivered by

The action in this case was brought by the plaintiffs against the defendant company to recover damages for the destruction of certain property of plaintiffs by fire, communicated by sparks escaping “from a locomotive engine operated as aforesaid upon the railroad track of the defendant company by its agents, servants, and lessees,” under the provisions of section 1511 of the General Statutes. The two questions raised by the defence are: 1st. As to the constitutionality of the said section. 2d. Whether the defendant company could be held liable under section 1511 of General Statutes, if the jury came to the conclusion that the locomotive engine from which the sparks escaped belonged at the time to the Richmond and Danville Railroad Company, who were operating said railroad under a lease from the defendant company.

1 The first question is concluded, at least so far as this court is concerned, by the decision in the case of McCandless v. Richmond & Danville Railroad Company, 38 S. C., 103, and the discussion of it will not be reopened here.

2 So, also, it seems to us that the second question has likewise been determined by a very recent case, in which the decision was filed on the 14th of March, 1894, Hunter v. Columbia &c. Railroad Company, ante, 86, where it was held that the lessor company could not be held liable, under section 1511, where the fire originated from a locomotive engine owned and operated by the lessee company, and not by the lessor company, for the reasons stated in the opinion in that case, which need not be repeated here. The true theory, as it seems to us, is, that while a railroad company cannot escape liability for any nonfeasance or misfeasance in the performance of any of its corporate duties to its patrons or the public, as was held in Harmon v. C. & G. Railroad Company, 28 S. C., 401, to which we still adhere, by leasing its road to another, yet the lessor company cannot be held liable for a tort outside of its corporate duties in violation of the provisions of a special statute penal in its nature, at least especially under the express phraseology of such statute.

*2888 *287It is contended, however, by counsel for respondents in this *288case that by the terms of the lease the lessor company were, in fact, the owners of the locomotive engines used by the lessee company in operating the road. But, in the first place, we cannot agree with counsel in any such construction of the lease; for while it may be that, under such terms, the lessee company may become the owners of such locomotive engines at some future time, there is certainly no evidence in the case which even tends to show any such circumstances, as would invest them with such ownership now. In the second place, by the terms of the request, which was refused, and which refusal gives rise to the second question stated above, the Circuit Judge was asked to instruct the jury that if they believed that the Richmond and Danville Railroad Company, and not the lessor company, was the owner of the locomotive engines from which the fire was communicated, that in that event the latter company could not be held liable under section 1511 of the General Statutes. Besides, the Circuit Judge was not requested to put any such construction upon the lease as that contended for here, and, so far as we can discover from the record, did not undertake to do so. Indeed, so far as appears from the “Case” as prepared for argument here, this matter of the construction of the lease was not considered in the court below. We are of opinion, therefore, that the Circuit Judge erred in refusing the defendant’s second request to charge.

The judgment of this court is, that the judgment of the Circuit Court be reversed, and that the case be remanded to that court for a new trial.