103 Ark. 401 | Ark. | 1912
(after stating the facts). This court said in Catlett v. Railway Company, 57 Ark. 461: “When the whole case appears to have been developed — that is, the plaintiff has adduced evidence tending to prove all the facts obtainable to sustain his complaint — and the undisputed evidence is so conclusive that this court would be compelled to reverse the judgment based upon a verdict in its favor, the- court should withdraw the case from the jury, and direct a verdict for the defendant.”
In Jones v. Lewis, 89 Ark. 372, the court said: “In determining on appeal the correctness of the trial court’s action in directing a verdict for either party, the rule is to take that view of the evidence that is most favorable to the party against whom the verdict is directed. Lafayette v. Merchants Bank, 73 Ark. 561; Rodgers v. Choctaw, O. & G. Rd. Co., 76 Ark. 520. And where there is any evidence tending to establish an issue in favor of the party against whom the verdict is directed, it is error to take the case from the jury. St. Louis, I. M. & S. Ry. Co. v. Petty, 63 Ark. 94; Wallis v. St. Louis, I. M. & S. Ry. Co., 77 Ark. 556; St. Louis, I. M. & S. Ry. Co. v. Vincent, 36 Ark. 451; Overton v. Matthews, 35 Ark. 146; Boyington v. Van Etten, 62 Ark. 63; Fidelity Mutual Life Ins. Co. v. Beck, 84 Ark. 57.”
The testimony of appellants tended to establish the fact that the train passed, shortly before the house was discovered to be on fire, emitting an unusual amount of sparks and fire, which were thrown high and scattered by a strong wind on both sides of the track; that there was no way in which the fire could have originated from within the house, and that it was first discovered to be burning upon the roof on the side next to the railroad track.
This evidence, if undisputed, and the fire not otherwise accounted for, would have warranted the inference that it was caused by the sparks and fire emitted from the railroad engine, and sustained a finding by the jury to that effect. Central Ark. & E. Ry. Co. v. Goelzer, 92 Ark. 570; St. Louis S. W. Ry. Co. v. Trotter, 89 Ark. 273; Missouri & N. A. Rd. Co. v. Phillips, 97 Ark. 56.
It is true that the preponderance of the testimony was against this version of the origin of the fire, and tended strongly to establish the fact that the house was closed, so the sparks from the train could not have entered it, and that the fire originated within the house; several of the witnesses testifying that, when they reached the scene, there was no fire on the outside, except as it burst through the windows and out from under the eaves of the house.
But the appellant’s evidence was entitled to its strongest probative force on consideration of the question of directing a verdict; and, since it tended to establish the issue in their favor, the question should have been left to the determination of the jury, and it was error to withdraw the case from them and direct a verdict against appellants. Jones v. Lewis, supra.
For this error the judgment is reversed, and the cause remanded for a new trial.