Turner v. Atlanta & St. Andrews Bay Ry. Co.

72 So. 388, 197 Ala. 169, 1916 Ala. LEXIS 36

Opinion

ANDERSON, C. J.

Had the evidence in this case created a reasonable inference that the defendant’s locomotive set fire to the plaintiff’s property, this case should have been submitted to the jury; but this court is of the opinion that it is a mere matter of conjecture or speculation as to whether or not it did so, and that the trial court correctly gave the affirmative charge for the defendant.

This case is distinguishable from the case of Deason v. A. G. S. R. Co., 186 Ala. 100, 65 South. 172, and other cases cited by the appellant. It will be noted that, among the other facts mentioned in the opinion in the Deason Case, the statement of facts shows that a witness, saw the train when passing in front of the burned house, and said the engine was emitting sparks — “a whole lot of them.” Here there was not only no proof that the engine was emitting sparks, but there is negative evidence that it was not. Several witnesses testified to seeing large quantities of smoke and steam escape from the engine, but not one of them saw sparks, and, had there been sparks, some of them would have probably seen them.

The judgment of the circuit court is affirmed.

Affirmed.

Mayfield, Somerville, and Thomas, JJ., concur.