Hines v. Venable

88 So. 703, 81 Fla. 754

Opinion

Per Curiam.

The defendant in error recovered a judgment against the railroad company for the loss of property destroyed by fire, in an action wherein it was alleged that as a result of the defendant’s carelessness and negligence in failing to provide its engine with proper and necessary appliances, instruments and spark arresters, that sparks and brands of fire escaped from the engine and were carried, thrown upon and ignited and burned plaintiff’s property as specifically alleged. On writ of error it appears that the testimony adduced in the transcript of the record does not show by direct testimony or by duly connected probative circumstances that the property was destroyed by fire that was the result of the defendant’s negligence as alleged. The burden of shownig affirmatively in the first instance that the fire was caused by the defendant in the operation of its train as alleged was upon the plaintiff; and' that fact cannot be presumed. Gracy v. Atlantic Coast Line R. Co., 53 Fla. 350, text 364, 42 South. Rep. 903.

The testimony fails t'o directly connect the defendant with the setting out of the fire; and conjecture cannot supply the neeessarjr evidence. The judgment must be reversed on the authority of Florida East Coast R. Co. v. McElroy, 72 Fla. 90, 72 South. Rep. 459; Seaboard Air Line R. Co. v. Royal Palm Soap Co., 80 Fla. 800, 86 South. Rep. 835; Payne v. McKinnon, 81 Fla. —, 88 South. Rep. 495, decided at this term.

Browne, C. J., and Taylor, Whitfield, Ellis and West, J. J., concur.