81 Fla. 583 | Fla. | 1921
This was an action for damages, resulting from a ñre which was alleged to have been set out upon the plaintiff’s premises by an engine of the defendant operating the Louisville & ¡Nashville railroad through Jackson county. The first count alleged that the engines were “insufficiently equipped with appliances and not kept in proper repair,” so that fire was set out by cinders
The plaintiff’s premises which were damaged by fire which occurred on July 5th, 1918, are located near the right-of-way of the Louisville and Nashville railroad. The fence, according to one witness, was about two hundred and fifty feet from the right-of-way. A fire occurred' which destroyed part of the fence, burned over several acres of ground killing shrubbery, trees' and flowers, and according to the plaintiff producing damages amounting to about three hundred and seventy-five dollars. Much was said' by witness for the plaintiff about sparks sometimes being emitted from locomotive engines and coals being dumped from the fire box upon the railroad track by passing engines. But no one testified that the fire upon the plaintiff’s premises originated that way. There was no tracing of a fire from the railroad track where a bed of coals had been deposited across the right-of-way to
The evidence is insufficient to show that the fire originated in the manner set forth and alleged in the declaration. The plaintiff’s case rested upon circumstantial evidence, which consisted of the facts that his place was located near the railroad track, and four engines had passed' during the day, and that some engines operated upon that road had been observed at other times to emit sparks of unusual size from the smoke stack. While these facts' are consistent- with ■ the theory that the fire may have originated in-the manner alleged in the-declaration, ■they-are-not.inconsistent with the idea that it may have
Section 3148 of' the General Statutes, 1906, • Section 4964, Eevised General Statutes, 1920, provides that a railroad company shall' be liable for any damage done to person or property by the running of the locomotives, cars or other machinery ■ of the' company, unless the company •shall make it appear that its agents have exercised all ordinary and reasonable care and diligence, the presumption in all cases being against the company.
Under this section the burden of proving the injury is on the plaintiff. When that burden has been met the defendant must show absence of negligence. See Seaboard Air Line Ry. v. Smith, 53 Fla. 375, 43 South. Rep. 235.
As the injury in this case was not show'n to have occurred by the running of the locomotives, cars of other machinery of the company, no presumption of negligence can be invoked against the company. 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. See Florida East Coast R. Co. v. McElroy, 72 Fla. 90, 72 South. Rep. 459; Seaboard Air Line Ry. Co. v. Royal Palm Soap Co., 80 Fla. 800, 86 South. Rep. 835.
The verdict is not supported by the evidence and the judgment is hereby reversed.
Browne, C. J., and Taylor, Whitfield and West, J. J., concur.