85 Fla. 203 | Fla. | 1923
By this action the plaintiff Welch seeks to recover from the defendant railway company the value of certain several buildings and their contents, destroyed by fires occurring at Cottondale, in Jackson County, on the 16 day of February, 1921, and the 25 day of March, 1921. It is alleged that the fires were communicated to the. buildings destroyed from a locomotive of defendant while being operated by it. Pleas of not guilty and that plaintiff was not damaged as alleged were interposed. The verdict was
The ownership, value, and destruction by fires, of the property, are not’ contested. That the fires were communicated to the buildings from a locomotive of defendant, by it negligently equipped and negligently operated, is contested.
The negligence alleged is that the defendant railway company failed to equip its engines with proper spark arresters and devices to prevent the escape from them of sparks and live coals, and failed to keep its spark arresters in repair, and that in the negligent running and operation of its engines, so negligently equipped and out of repair, fire was emitted from them in the nature of sparks and live coals which set out the fires that destroyed plaintiff’s property.
In Payne v. McKinnon, 81 Fla. 583, 88 South Rep. 495, involving a like question, the court said: “It cannot be assumed that the injury was done by the defendant. The injury must be shown to have been done by the defendant; it is the thing to be proved; it cannot be impliedly taken for granted.” But this fact may be proved by circumstances which are inconsistent with any other rational theory than that the fire which destroyed the property resulted proximately from the running of defendant’s locomotive. Jacksonville, etc., Ry. Co. v. Peninsular, etc. Co., 27 Fla. 1, 9 South. Rep. 661; F. E. C. Ry. Co. v. Welch, 53 Fla. 145, 44 South. Rep. 250.
No witness testified to having actually seen sparks or live coals emitted from the locomotive of defendant alighting upon either of the buildings, thus transferring the fire
These circumstances are of sufficient probative force to support the conclusion that the injury was done by the
There was evidence on -behalf of defendant that its locomotive which, according to the evidence of plaintiff’s witnesses set out the fires resulting in the injury to plaintiff, was equipped with modern appliances in general use and was at the time being operated with dire care by defendant’s agents. But upon this issue'of fact the jury found for the plaintiff. Having determined that the evidence
Affirmed.