
    The Chicago, Rock Island & Pacific Railway Company v. A. H. Willis.
    No. 14,659.
    (85 Pac. 1134.)
    
      Damages — Injury by Fire — Instructions—Verdict and Evidence. In an action for damages for the setting out of a fire by defendant’s engine it'was said that the instructions were proper, and the verdict for plaintiff was not without support in the evidence.
    Error from Thomas district court; Charles W. Smith, judge.
    Opinion filed June 9, 1906.
    Affirmed.
    
      M. A. Low, W. F. Evans, ánd Paul E. Walker, for plaintiff in error.
    
      E. H. Benson, Clement L. Wilson, and John Hartzler, for defendant in error.
   Per Curiam:

The controversies involved in this case all seem ultimately to be involved in the findings of the jury as to the facts. The court instructed the jury that before the plaintiff could recover he must prove by a preponderance of evidence that defendant’s train set out the fire; that if the fire was started before the train arrived where the fire first occurred the defendant was not responsible, but if the fire started immediately after the train passed the jury might infer that the train set the fire; that if the jury found that the train set the fire it was prima facie evidence of negligence in the management of the train, but that this presumption of negligence might be overcome and disproved if the evidence showed that the locomotive was at the time provided with proper appliances to prevent the escape of fire, that these appliances were in good repair, and that the locomotive was carefully and efficiently handled; -that it was for the jury to determine whether there was negligence on the part of the defendant either in using defective appliances or in the management of the locomotive; and that, if there was no negligence, there could be no recovery against the defendant. In short, the court seems to have correctly instructed the jury upon every question of law involved, and to have covered every request for instruction asked by the defendant, so far as it was a correct statement of the law.

If the evidence of the witnesses for the defendant be given full credence, it makes a very strong showing that the locomotive had the best appliances to prevent the escape of fire which it is practicable to use and that the locomotive was handled with the utmost care. Given full credit, their evidence shows that the fire was burning before the locomotive arrived at the point where the fire started, and that the appliances and management of the locomotive were such as to render the escape of fire from it next to impossible. None of these witnesses was impeached, nor was any of their evidence directly contradicted, unless it was as to the time of the starting of the fire. The evidence of plaintiff’s witnesses tended to show that the fire started, not before, but after, the locomotive passed the point of its starting. The jury believed from the evidence that the locomotive started the fire, and so found, and hence could not well have given full credence to the accuracy of the evidence relating to the perfection of the appliances and the management of the locomotive.

Were it the province of this court to weigh the evidence we might come to a different conclusion than did the jury, but it is not. We cannot say that the verdict and judgment are not supported by evidence.

The judgment of the district court is affirmed.  