124 So. 205 | Ala. | 1929
This action is by the appellee against the appellant for negligently setting fire to the plaintiff's barn, resulting in the destruction of the barn and its contents.
The complaint consists of a single count which avers that, "at said time and place, defendant negligently, by means of sparks or fire emitted from said locomotive engine, caused said property to be greatly injured or destroyed by fire." These averments are sufficient to cover negligent construction and equipment of the locomotive, as well as negligent operation and management. Alabama G. S. R. R. Co. v. Loveman Compress Co.,
The evidence, though purely circumstantial, was sufficient to authorize an inference to be drawn by the jury that fire was communicated to the building by sparks emitted from the defendant's locomotive, and under the scintilla rule made a case for jury decision. While there was no direct testimony showing that live sparks from the locomotive fell upon the building, there was some testimony to the effect that on the occasion the locomotive, as it passed plaintiff's barn, emitted large live sparks in unusual quantities, and shortly after the train passed — within 35 minutes — according to some of the witnesses, the roof of the barn was discovered to be on fire; though there was other evidence going to show that immediately thereafter the fire was bursting from the side of the building, and at least tending to show that the fire originated from the inside of the building, which was filled with hay and other inflammable material.
It is a well-recognized exception to the general rule of evidence that a witness must testify to facts and is not to express an *160
opinion, that "where a fact cannot be reproduced and made apparent to the jury, a witness may describe the fact according to the effect produced on his mind; or if from the nature of a particular fact, better evidence is not attainable, the opinion of a witness derived from observation is admissible." Mayberry v. State,
For like reasons the court did not err in overruling the defendant's motion to exclude the statement of the witness Easter Gunn that the sparks she observed coming from the smoke stack of the locomotive "well they were large sparks."
The scintilla of evidence going to support the plaintiff's case made it necessary to refer the issue of fact thus raised to the jury for decision, and justified the refusal of the affirmative charge. Orman v. Scharnagle,
Charge 5 is argumentative and invasive of the province of the jury. Charges 3 and 9 would have confined the jury's consideration to negligence in the operation of the locomotive, and, as we have shown, the issues covered negligence in construction and equipment, and for this reason these charges were properly refused. Southern R. Co. v. Kendall Co.,
Charge 8 asserts a sound proposition of law, and its refusal was error. Carter v. The State,
Inasmuch as the case must be reversed, we refrain from expressing our judgment as to the weight of the evidence involved in the ruling on the motion for a new trial, in respect to its sufficiency to sustain the verdict.
Reversed and remanded.
ANDERSON, C. J., and SAYRE and THOMAS, JJ., concur.