The following opinion was filed December 15, 1899:
1. The first and second assignments of error are alleged upon the refusal of the court to require plaintiffs to make complaint more definite and certain as to the place or places where originated the fires which were claimed to
2. The third, fifth, and sixth assignments of error present the question whether there was any evidence which, upon the most favorable consideration, and with every reasonable inference resolved in plaintiffs’ favor, might have justified the jury in finding that the two several fires reached and destroyed plaintiffs’ timber. The view of the trial court is
The efficiency of the fire originated by defendant just east of Clifford to damage plaintiffs’ timber in section 30, township 36, range 4 E., is supported by the direct testimony of several witnesses to personal observation and knowledge, and of many to facts supporting the inference, and it is denied by testimony of others who put squarely in dispute facts, testified to by plaintiffs’ witnesses; but if the jury credited the testimony offered by plaintiffs, they might well have found, as they did, both as to the fact and amount of damage attributable to this fire. It would needlessly and very greatly extend this opinion to take up this conflicting evidence here in detail. That was done between counsel and the trial court, and we concur in the conclusion here reached that, wherever the preponderance of evidence may have been, the testimony of the plaintiffs’ witnesses was not so-incredible nor so antagonized 'by any undisputed conditions or circumstances that it could not support a verdict.
Appellant assigns error upon the refusal of the following instruction: “It appears by the uncontradicted evidence-that an extensive fire, for which the defendant is not responsible, and whose origin is unknown, was working southeasterly towards section 30, and that such fire might have reached the lands of the plaintiffs in said section, and burned over-the same, independently of the fire charged to the defendant. If the jury believes, from all the evidence, that the fire set by the section men did run north over some of the lands-of the plaintiffs in section 30, and the jury believes that the northwest fire also burned over some of the lands in said.
We find no reversible error in the record.
By the Court.— Judgment affirmed.
A motion for rehearing was submitted on the briefs of Alfred II. Bright, attorney, and M. B. Koon and II. B.DUce, of counsel, for the motion, and on that of Cate, Sanborn, Lam-breux c& Bark, contra.
The motion was denied February 21, 1900.