Co. v. Kelsey, 13 How. Pr. 535; Silliman v. Clark, 2 How. Pr. 160; Bander v. Covill, 4 Cow. 60. The presumption of negligence on one side and the rebutting evidence on the other produces a conflict and therefore an issue for the jury, Babcock v. R. R. Co. 17 N. W. Rep. 909; Dunning v. Bond 38 Fed. Rep. 813; Hoorer v. Ry. Co. 16 S. W. Rep. 480; Ry. Co. v. Bartlett, 16 S. W. Rep. 638. Proof that a cinder was thrown 118 feet from the track, was evidence for the jury from which they might infer negligence. Greenfield v. Ry. Co. 49 N. W. Rep. 95; to same effect, Ry. Co. v. McClelland, 42 Mi. 355; Doyscher v. Ry. Co. 45 N. W. Rep. 719; Ry. Co. v. Boss, 41 Fed. Rep. 917.
Corliss, C. J. The plaintiff and respondent has recovered judgment for damages occasioned by a prairie fire set out by one of defendant’s locomotives. Before coming to the merits we, have several questions to dispose of. In due time the defendant presented to the District Court of the state its petition for removal of the cause to the Federal Circuit Court. The denial of this application for removal is assigned as error. The only point here involved is whether the matter in dispute in this case at the time of filing this petition exceeded, exclusive of interest and costs, the sum or value of $2,000. If not, the trial court was right in refusing to grant the prayer of the petition. If, on the other hand, it did exceed $2,000, the trial court had no jurisdiction, after the filing of the petition, to proceed further with the cause, and the judgment is void. We are satisfied we must sustain the action of the trial court in this behalf. While it is true that it is stated in the complaint that the value of the property destroyed by the fire was over $2,000, the plaintiff expressly limited his demand to that sum. This demand governs in actions of this character. Of course it might not control when in excess of the alleged value of the property destroyed. But the injured party may, if he sees fit, waive his right to recover full damages, and in that case the litigation involves only the amount which he seeks to recover. We cite, as sustaining our ruling on this point, Fost. Fed. Pr. § 16 and cases cited: Desty, Rem. Causes, p. 246,
