112 Me. 480 | Me. | 1914
Two actions on the case brought by the plaintiffs to recover the value of property destroyed by fire alleged to have been communicated by a locomotive engine of the defendant. The cases were tried together at the January term in Androscoggin County, and the verdicts were for the plaintiffs, and the cases are before this Court upon motions to set aside the verdicts as against law and evidence.
The land of the plaintiff Allen, which was burned, adjoined the railroad and contained twenty-four acres. The plaintiff Allen also owned some cord wood on the land which was burned. The plaintiff Bisbee owned the sawed lumber on the lot. The fire occurred June 28, 1913, and the property of both plaintiffs was destroyed and damaged to the amount found by the jury.
The only question before us is did the testimony authorize the verdicts?
It was proved that shortly before the fire two trains of the defendant passed by the land, and' there was' some evidence that one of the engines emitted a large quantity of smoke. The wind was blowing down the track toward the place where the fire was discovered. The winter preceding the fire, the plaintiff Bisbee cut the pine upon the lot and sawed it into box bolts and lumber. The slash from the winter’s operation remained upon the ground where it fell, was thoroughly dry, and of course very inflammable. Before the fire Hilda Atwood, who lived a short distance from the lot, was on the lawn in front of the house. She was talcing care of, or looking out for her brothers, Charlie Atwood, eight years old, and Clyde Atwood, six years old, and Frank Thorne a neighbor’s boy was playing with them. She heard the last train pass about twenty minutes before the fire was discovered. About three minutes before the discovery of the fire she went out back of the house where the boys were playing, over by the pine grove and by the ledge that the Thorne boy, called “his rock,” but a few feet from where it is claimed the fire started, about one hundred feet from the track of the defendant.
The testimony as to the engines passing the lot just before the fire, and that other engines of the defendant had set fire in that vicinity, tended to establish “the possibility and consequential probability” that the fire was communicated by the locomotive engine of the defendant, but that alone does not satisfy the rule that the plaintiff must prove, by a fair preponderance of the testimony, that the engine did communicate the fire. If other causes are eliminated; if other facts and circumstances are proved tending to support the theory that a locomotive engine communicated the fire, the probabilities may turn the scales in favor of the plaintiff; but in this case other causes are not eliminated; and the facts and circumstances proved do not corroborate the plaintiff’s theory, or tend to strengthen the probability that the engine of the defendant communicated the fire, but tend to prove that it did not. The evidence shows a possibility that the locomotive engine of the defendant communicated the fire. It also shows a possibility that the Atwood boy caused the fire.
Motions sustained.
New trials granted.