
    Jacob Louis v. Union Pacific Railway Company.
    Filed April 21, 1896.
    No. 6387.
    Conflicting Evidence: Review. A question of fact determined on conflicting evidence will not be reviewed.
    Error from the district court of Platte county. Tried below before Sullivan, J.
    
      McAllister & Cornelius, for plaintiff in error.
    
      J. M. Thurston, W. R. Kelly, and E. P. Smith, contra.
    
   Norval, J.

This action was brought to recover damages against the defendant for the negligent destruction by fire from one of its engines of about one hundred and twenty tons of hay owned by the plaintiff. At the trial there was a verdict for the railroad company, and from an order refusing a new trial plaintiff prosecutes error to this court.

The only contention here is that the verdict is contrary to the evidence. No witness testified to having seen the fire in question start. Several persons were called and examined by plaintiff, who testified that they saw the fire spring up shortly after defendant’s locomotive and cars had passed on its track, from which it might be inferred that the fire originated from sparks or cinders thrown or cast out by said engine into the dry grass and combustible material near defendant’s right of way. Evidence was also introduced by the plaintiff tending- to show that the reputation of this particular engine for setting out fires was bad. On the other hand, evidence was adduced to show that this locomotive was equipped with the latest and most approved appliances for the prevention of the escape of sparks and cinders, and at the time was in good condition and was operated properly and in a skillful manner; furthermore, that no fire escaped from said engine on said daté. There is also testimony tending to show that the fire, originated too far from defendant’s right of way to have been started by sparks or coals from the engine, had any escaped therefrom. There is ample evidence in the record to sustain a finding for either party, the testimony being so conflicting. The verdict not being unsupported by the evidence, the judgment is

AFFIRMED.  