Gulf, M. & N. R. Co. v. Sumrall

• Decision Date: 22 February 1926
• Docket Number: 25461
• Citation: 142 Miss. 56,107 So. 281
• Parties: GULF, M. & N. R. CO. v. SUMRALL. [*]
• Court: Mississippi Supreme Court

107 So. 281

142 Miss. 56

GULF, M. & N. R. CO. v. SUMRALL. ^[*]

No. 25461

Supreme Court of Mississippi

February 22, 1926

Division B

RAILROADS. Origin of fire held issue for jury on circumstantial evidence against railroad.

Where circumstantial evidence justified jury in finding that the inference that fire causing damage was set by railroad locomotive was stronger and more probable than that it was set out from another cause, the question of fire's origin was an issue of fact for jury.

HON. R S. HALL, Judge.

APPEAL from circuit court of Jones county, first district, HON. R S. HALL, Judge.

Action by L. J. Sumrall against the Gulf, Mobile & Northern Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Affirmed.

W. S Welch and Ellis B. Cooper, for appellant.

This record presents a case where the appellee is endeavoring to prove by circumstantial evidence that a locomotive pulling a passenger train started the fire that caused the damage. They will have observed that no witness in this case swears or attempts to swear that the locomotive of the train that passed was throwing fire or emitting sparks. There is no evidence that the locomotive set out other fires. The case rests entirely upon these facts:

A train passed. Fifteen to thirty minutes thereafter a fire was discovered. No one saw the train set out the fire. No one swears that between the passing of the train there was nothing or no one to set out a fire. What occurred between the passage of the train and the discovery of the fire does not in any way appear. The proof of a fact by circumstantial evidence must exclude by proof the existence of all other agencies for the accomplishment of the fact whose cause is sought.

This was the reason announced from the bench for the affirmance of the case of Davis v. N. O. G. N. R. R. Co., a case affirmed without opinion. This rule is the rule announced in many cases and is the law to-day.

And this record shows, too, without dispute that the whole country was on fire. Appellant's witness, Allen Boutwell, says the whole country was on fire. Tanner, a neighbor, says that he burned around his pasture to protect it and even then it was burned over. Appellee says, it is true, that it caught by the side of the track. His evidence, too, is that the wind was blowing from the west, which, to say the least, would carry the fire or sparks from the track. We say on the whole case, that the appellee has not by his proof excluded other agencies so as to fix liability upon this appellant. And we submit that the case should be reversed and judgment rendered here.

Jeff Collins and B. F. Carter, for appellee.

The only contention raised here is that the court erred in not instructing the jury to find for the defendant. It was proper to allow the case to go to the jury for it was a question of fact, solely for the jury to pass upon. According to the testimony of appellee and all of his witnesses, there was absolutely no fire there in this immediate vicinity prior to the time that appellant's train passed along.

There is no other agency for the accomplishment of setting out the fire in the instant case shown, other than that appellant's train set it out. The wind was blowing from the west and there was no fire to be seen in a westerly direction from where this fire started. Fire over across Boguehoma creek, at least a mile to the east from where this fire started, could not possibly be carried to this place by a wind blowing from the west; sparks from a fire down at the Junction, about a half-mile south of the place where this fire started, could not possibly be carried to this place by a wind blowing from the west; and so, we ask, where did the fire come from? And in the next breath we answer the question by saying that it was set out by appellant's train, just as the jury which decided the case, found in its verdict.

Where immediately after the passing of a train, the grass...