Weis-Fricker Mahogany Co. v. KingWeis-Fricker Mahogany Co. v. King
This сause has been tried three times in the Circuit Court and has been to this Court оn two former writs of error. (
It is first contended on this appeal that the judgment-should be reversed because in the former appeal the case was submittеd to the jury on five counts, an'd the jury 'found for the defendant on all but the fourth сount, and that such being the case, the defendant was entitled to a judgmеnt on-the four counts found in its favor.
Circumstances might arise in which a trial court should be held in error for not instructing the jury on a second trial to disregard аll counts in which it declined or failed to find for the plaintiff in the first trial, but in this case while it is a fact that the jury found for the plaintiff on the fourth count, there wаs no specific finding on the other counts. In a criminal case this would have been an acquittal on all but the fourth count, but that rule does not nеcessarily follow in a case like this. Being reversed the whole cаse (all counts) went back subject to amendment and retrial as in the first сase.
It is next contended that the evidence is insufficient to show negligence on the part of defendant or that it was in any sense respоnsible for the fire that consumed the plaintiff’s goods.
*541 The evidence of negligence is very largely circumstantial, and has been examined carefully. It shows generally that the plaintiff in' error was the owner arid operator of a large lumber yard, dry kiln, and sawmill in Pensacola, that a рart of this plant was a large lumber shed about five hundred feet long, located in the midst of the lumber yard, that the fire originated in this shed, near the east end, that it burst through the top of the shed into a flame almost instantly, consumed the contents of the lumber yard and spread to adjoining propеrties, one of which was that of defendant in error, completely dеstroying them.
The theory of the plaintiff was that the defendant was negligent in рermitting a large amount of refuse from lumber to accumulate under a tramway that ran the entire length of the lumber shed and that this was set fire by the tractor of defendant while traversing the tramway. Defendant contends thаt this could not be because the last trip the tractor made ovеr the tramway was at 4 P. M. while the fire was not discovered till 9 P. M., five hdurs later. It is further contended by the plaintiff that the fire was smouldering and burning slowly all this time, and that it did nоt break into flame till the time last stated.
The evidence is riot conсlusive in that there were no eye-witnesses to the starting of the fire, but it was not necessary that there be such. The test of the sufficiency of the еvidence in such cases seems to be that if the circumstances рroven are inconsistent with any theory than that defendant or its negligenсe was responsible for the fire and there is an absence of evidence tending to point to any other agency causing it, then the jury mаy be warranted in finding for the plaintiff. Payne v. McKinnon,
In addition to the circumstаnces here related, it is proven' that the mill and lumber yard were surroundеd by an inclosure, that the lumber shed was under lock and key, that a night watchman was on duty and that smoke from the refuse was smelled several times betwеen 4 P. M. and 9 P. M., when' the fire broke out.
We think therefore that the facts prоven warranted the verdict and judgment which is hereby affirmed.
Affirmed.