Monte Ne Ry. Co. v. Phillips

• Decision Date: 15 October 1906
• Citation: 96 S.W. 1060
• Parties: MONTE NE RY. CO. v. PHILLIPS et al.
• Court: Arkansas Supreme Court

96 S.W. 1060

MONTE NE RY. CO. v. PHILLIPS et al.

Supreme Court of Arkansas.

October 15, 1906.

Appeal from Circuit Court, Benton County; Jno. N. Tillman, Judge.

Action by Thomas M. Phillips and others against the Monte Ne Railway Company. From a judgment in favor of plaintiffs, defendant appeals. Affirmed.

The complaint alleges the negligent burning of a frame residence. It is alleged that the fire was caused by sparks communicated from an engine, which was being negligently operated by appellant. The answer denied that the fire was set by appellant's engine, and denied that the engine was negligently operated.

B. R. Davidson, for appellant. McGill & Lindsey, for appellees.

WOOD, J. (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 instructions asked by appellant: "No. 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. & Sou. Ry. Co. v. Dawson (Ark.) 92 S. W. 27, we said: "It is not required that the evidence should exclude all possibility of another origin, or that it is 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: "No. 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: "No. 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 appella...