80 Ark. 292 | Ark. | 1906
(after stating the facts.) We need not discuss in detail the evidence bearing upon the disputed questions of fact. The evidence presented conflicting theories as to the origin of the fire. But these were submitted to the jury -upon the following instruction asked by appellant:
“1. I charge you that the burden of establishing by proof that the fire was set -by the engine of the defendant railroad company is on the plaintiffs. If the proof fails to show this proposition, or if it preponderates against it, or is equally balanced, you should find in favor of the defendant.”
In St. Louis, I. M. & So. Ry. Co. v. Dawson, 77 Ark. 434, we said: “It is not required that the evidence should exclude all possibility of another origin, or that it be undisputed. It is sufficient if all the facts and circumstances in evidence fairly warrant the conclusion that the fire did not originate from some other cause.” It was not error therefore to refuse the following : “4. If the evidence fails to .establish the origin of the fire, you will find for the defendant.” This is abstract. The evidence shows the fire originated from a stove in the house or from appellant’s engine. The verdict finds that the fire was caused by the engine of appellant, and the evidence is sufficient here to warrant the verdict.
'Appellant contends that the court should have granted the following request: “3. I charge you that there is no law requiring a railroad company to use coal as a fuel, and the use of wood as a fuel would not constitute negligence.” The request was a correct proposition of law, but it was abstract here. The only issue presented was whether or not the fire was caused by the negligent operation of appellant’s engine. If the fire was caused by the negligent operation of appellant’s engine, as the jury finds, it was wholly immaterial whether appellant used wood or coal as fuel. Tihe court should not have permitted counsel to argue that it was negligence for the appellant to use wood, instead of coal, but the argument was not prejudicial, because, under the instructions, the jury had to base its verdict upon the negligence of appellant in the use of insufficient appliances for arresting sparks, and not on its negligence in the kind of fuel used. If the fire was caused by sparks from the engine, as the jury must have found, it was immaterial whether the sparks were from wood or coal fuel. The verdict and judgment are in accord with principles announced by this court in recent cases. See St. Louis, I. M. & S. Ry. Co. v. Dawson, supra; St. Louis, I. M. & S. Ry. Co. v. Coombs. 76 Ark. 132; St. Louis, I. M. & S. Ry. Co. v. Ayres, 67 Ark. 371.
Affirm
