
    11240
    METZ v. C. & W. C. RY. CO.
    (117 S. E., 725)
    Railroads — Evidence of Fire From Sparks From Locomotive Heed Insufficient for Jury. — In an action for damages to a ginhouse by fire, set by sparks from a railroad engine, evidence held insufficient to go to the jury.
    Before DeVorE, J., Barnwell, April 1922.
    Reversed.
    Action by A. B. Metz against Charleston & Western Carolina Ry. Co. Judgment for plaintiff and defendant appeals.
    The complaint alleged (inter alia) :
    (3) That on the 24th day of October, A. D., 1914, the plaintiff was the owner and in possession of a certain ginhouse and ginning outfit, consisting of two 70 Lummus gins, one double box revolving press, condenser, fan, piping, shafting, belting, and also one engine and boiler, and also one planing mill and outfit, and 25,000 feet of lumber, all of which was situated and adjacent to the right of way of the defendant above named, at Baldock, S. C. The above property being in the aggregate of the value of $5,500.
    
      Note: Authorities discussing the question as to the distance within which sparks from a properly equipped engine will set fire as a subject of expert testimony, are collated in a note in 22 L. R. A. (N. S.), 1039.
    
      (4) That on the morning of the 24th day of October, 1914, the defendant above named, while operating one of its engines and train of cars, allowed fire to escape from said engine upon its said right of way, communicating it to the ginhouse of this plaintiff as aforesaid, which fire completely destroyed the above-described property, to the damage of this plaintiff $5,500.
    The evidence adduced by plaintiff is as follows:
    A. B. Metz, plaintiff, a witness in his own behalf, testifies as follows:
    I live now, and did in October, 1914, at Baldock, which is in Allendale County. I operated a ginnery and’sawmill, and owned the same when it was burned on October 24, 1914. The ginnery and sawmill outfit was about 150 or 175 feet from the Charleston & Western Carolina Railroad on the north side of the track. The sawmill and ginnery was on the hillside and the railroad was in the valley on the morning of October 24, 1914, the time the ginnery and sawmill was burned. It was about 3:15 in the morning when I was awakened by a hard shower of rain. It fell for a few minutes and the light from the burning gin-house was in my house, and I thought it was daylight. 1 lay there a few minutes, and my wife’s sister called from an adjoining room and said there was a fire at Baldock. I immediately got up and went to the fire and found that it was my ginnery and sawmill, and when I got there the roof was falling in. The property which I owned which was destroyed by.the fire was a system ginnery and planing mill outfit, together with about 25,000 feet of lumber. I had in the ginnery two 70-saw gin outfits, together with shafting, plugging, belting, and everything that is necessary for a ginnery. The gin was running the day before it was burned. The planing mill that was burned consisted of four-sided planer and ripsaw, a 'Bolton saw, and a cutoff saw and other kinds of saws. The other property burned 'by the fire was about 25,000 feet of lumber; 20,000 of which was rough lumber and 5,000 feet dressed lumber. When 1 got to the gin that morning and looked around, I could not tell where the fire started. It was drizzling a little when I got there, and the wind was blowing from the southwest to the northwest and the ginhouse was north of the railroad track, and about 150 to 175 feet from it. It was not raining at Baldock that night. At the ginhouse on the south side there had been cleanings from the gin-house which had been thrown out towards the railroad, as we had ginned about 900 bales of cotton and lots of lint had collected on the ground. When I got there that morning, all of this had been burned on the ground. There was no other gin at Baldock at the time of this fire.
    Cross-Examination ■
    The cotton was on the outside of the ginhouse on the ground and just dropped on the ground on the outside and was probably eight or ten inches deep and was right down against the wall on the south side next to the railroad. After the fire I rebuilt a gin — the one which is now there— on the same pillars as the old one was built on. I went to bed the night before the fire at 9 or 9 :30, and when I went to the fire the next morning it was drizzling rain. I live' at Baldock on the south side of the railroad about one mile from Baldock, and in coming into Baldock I will have to come by Mr. Joe Johns’ house. I got to the fire before Mr. Johns came. I ginned cotton the day before the gin was burned. It burned probably around 3 o’clock in the morning. I did not run the sawmill the day before the fire. The ginhouse and planing mill were about 60 feet apart. The boiler that operates the ginnery machinery was about 70 feet from the gin, and I had fire in the boiler the day before.
    Redirect Examination
    From the r-ailroad to the ginhouse the distance is about 150 to 175 feet. The boiler was further away from the railroad than the ginhouse; that is, the ginhouse is between the railroad and the boiler and the cotton was on the outside of the ginhouse on the ground. The boiler was further away from the railroad and on the opposite side; that is, on the opposite side of the ginhouse from the railroad track.
    Burley Phillips testifies as follows :
    On October 24, 1914, I worked for Mr. A. B. Metz. I fired for him and worked in the ginhouse, and remember well when the ginhouse and planing mill was burned. I was firing the boiler and engine the day before the fire, before the gin and planing mill was burned. I quit work in the ginhouse about sundown on October 23 d, the day before the fire. When I quit work I left the premises around the engine and boiler in good shape, cleaned up all around there, and there was no chance for the fire to get out, as I closed the draft doors and put water out around there. I was asleep the next morning when the fire broke out, and I woke up and went down there and the side of the gin-house next to the railroad was on fire. There was lint cotton and stuff on the side next to the railroad, and this was burned. I did not hear the train pass because I was asleep. I did not notice to see any signs where the fire first caught. I was so frightened I did not notice, only it was burning from the pile of trash to the ginhouse. It was not coming from the side towards the boiler. The trash was burning.
    Cross-Examination
    That trash was right up side of the ginhouse. I live a little more than 100 yards from the ginhouse. At my house at the time was Stephen Hicks and Charlie Hazel, and we got to the fire about the same time, and we saw about the same thing. We all commenced getting the cotton off of the platform when we saw it burning, and some of it was burning when we rolled it off. We rolled it off on the side next to the railroad. The stuff that was burning was near the wall on the outside of the ginhouse. I did not make a statement that I could not tell whether the fire was burning on the inside or the outside.
    Willie Williams testifies as follows:
    On the night Mr. Metz’s ginhouse was burned, I went to Alex Lawton’s to a sitting-up. He was dead. I left his house about 1 or 2 o’clock in the morning. His house was on the north side of the raliroad. I live on the south side. When I left Alex Lawton’s house going home I came down by Gillett’s church. When I got to the railroad crossing at Baldock I was about 200 yards from Mr. Metz’s gin-house. It was not raining when I crossed the railroad track. The wind was blowing right in my face, and I was going south. I did not see a fire at the gin when I was crossing. I heard a train coming from Augusta. It seemed to have gotten about to Martin’s Station. It was going toward Baldock, it had not gotten to Martin’s Station the way it sounded. I did not stay there and see the train coming across the crossing. Ben Badger was in the buggy with me. He is sick in bed.
    Daniel Carter testifies as follows:
    When Mr. Metz’s ginhouse was burned I lived at Baldock, and still live there. I was coming from Alex Lawton’s house and remember seeing Willie Williams and Ben Badger there that night. Alex Lawton’s house is about three miles from Baldock on the north side of the railroad, and I live on the south side, and have to go through Baldock to get home. Williams left the sitting-up first. When I ■ was coming down the road I heard the train. It was coming toward Appleton. Just before we get to the railroad track there is a hill before we got to the opening. When I came into the opening and started across the railroad track I saw a light at the seed place about that big, and I checked my horse, and I thought that they were intending to start up and was cleaning out the seed bin, so I went on. The wind was blowing from the south side and right in my face. I went on down the road and did not know of the fire until next morning. When I got to Baldock that night the train had. gone towards Appleton and was puffing hard, and I think it was cut loose before it got to Appleton. It was blowing around up there. It was puffing when I was half a mile from Baldock, and when I got down there it had gone up the grade. I was nearly home when it got to Appleton. It is a heavy grade from Baldock to Appleton, and I heard the train puffing when it was going up the heavy grade on that line. When I passed there I noticed a fire on the outside near where the seed is thrown out. The train had passed about a quarter of an hour before I got to the railroad. 'It was not at the depot when I heard it; it was going in the Appleton direction and had passed the depot. I was about at Mr. Ellis’ place when the train passed the ginhouse, which is about one-half mile, and it took me about a quarter of an hour to get to the crossing, and that is when I discovered the little fire.
    G. W. Owens testifies as follows:
    I am magistrate at Baldock and was when Mr. Metz’s ginhouse was burned in October, 1914. His ginhouse was the only ginnery at Baldock at the time. The nearest gin to it was about five miles.
    A. B. Metz, recalled, testified as follows:
    At Baldock there is a grade on the railroad, and it runs from west to east.' Heavy trains coming along there have to cut loose and take one-half of the train up to Appleton and them come back and get the balance. When they cut off the engine it is usually at the ginhouse.
    
      Q. When the train starts up the hill does it usually exhaust in getting up there? A. Yes, sir.
    Mr. Harley: We object to any other trains.
    Mr. Boulware: Any train, I think, is competent, because I am speaking about the railroad track and the grade now.
    The Court: I overrule the objection.
    They have to do a good deal of puffing to get a start. If they did not cut off they generally pick up their speed a little about the ginhouse. In doing this the engine has to exhaust more than usual in going up the track. They open up the throttle and give the train more speed in order to make the grade. They go up faster. The grade is high at the depot and crossing, and it gets higher on up the grade. It is an up grade from here, and it is a down grade from the tank to the creek. The tank is about 200 yards south of the depot.
    Ben Badger testifies as follows:
    I remember the night when Mr. Metz’s ginhouse was burned at Baldock. I came down the road that night from the sitting-up at Alex Lawton’s house. Willie Williams was with me. I could see Mr. Metz’s ginhouse when Willie Williams and I were about to the crossing at Baldock. I did not see any fire there. It was not raining when we passed. I live about two miles south of the railroad. It did not rain on me before I got home. Before I got to the crossing I heard a train coming, and it seemed like it was about at Martin’s. I do not know how far Martin’s is from Baldock.
    Cross-Examination
    .1 do not know what time it was, but it was around 12 o’clock. It seemed like it might have been after 12. I never did see the train, but only heard it. T guess it was after 12 when we left the sitting-up.
    J. C. Calhoun testifies as follows:
    I live at Baldock and lived there when Mr. Metz’s gin-house was burned. I went to the fire that night- and when I got there it was all aflame and falling in. The wind was blowing in a northeasterly direction. It was blowing from the railroad track to the ginhouse and sawmill. The lumber shed was north of the ginhouse, and the wind was blowing northeasterly. The wind was blowing the fire from the sawmill. There is a grade on the railroad which commences below the ginhouse. The trains that cut loose and go to Appleton with part of the cars and then come back for the balance have to increase their speed to go over the grade. In going over the grade they have to put on extra steam, if they don’t cut loose and try to go without they do have to put on extra steam.
    Q. You have noticed trains that try and go over there that throw cinders and sparks, etc.—
    Mr. Harley: We object to that.
    The Court: He can show that there is a grade, and, if the witness knows that they have to put on more steam and puff more, that is competent.
    Mr. Boulware: My question now is that when they do put on more steam and puff more, if they do not throw cinders out of the smokestack and sparks?
    Mr. Harley: Now, we object to that. We don’t think it is competent.
    The Court: Question.
    Q. Did you ever see them going up there in that condition? A. Yes, sir; I have seen the sparks going up and falling.
    Q. You did not see it out of this train — I mean this particular train? A. No, sir; I was not there.
    Q. You did not see this particular train? A. No, sir.
    The Court: T think I will let him answer that question.
    Mr. Boulware: (Continuing.)
    Q. What was your answer to that? A. I have seen sparks going up there, but not that night of this fire. The only trains that I have ever seen cut loose to go to Appleton were freight trains.
    
      Cross-Examination
    Q. Some of these trains in the daytime throw out cinders? A. Yes, sir. The grade that I am speaking about is just below Baldock, of course, the real grade is on up towards Appleton. After you leave Baldock and go towards Appleton there is a very high grade, and that is the real grade along that line, and by reason of the grade between Baldock and Appleton it is necessary to cut the trains loose in order to go over that grade. But I don’t know which grade they cut loose for. When they cut loose, it is usually down below Mr. Metz’s ginhouse on the Augusta side.
    G. W. Owens testified as follows:
    As to the grade at Baldock where Mr. Metz’s gin was burned, was about 300 yards west of the ginhouse. You can stand at Baldock and notice that it is rising grade from there. As it goes to the station it goes up and is level at the station until it passes the tank between Baldock and Appleton. It is a very heavy grade. At Baldock heavy freight ' trains generally cut off, and a part of the train goes to Appleton and the engine comes back for the balance of it. When these freight trains cut off and start with part of the train, it is difficult to get a start, and when they don’t cut off they make a great deal of exhaust and fuss in order to make the grade and throw out more cinders than usual.
    Cross-Examination
    A train coming to Baldock in order to make the grade on the way to Appleton has to put on more power to make the grade between Baldock and Appleton, and this grade starts before you get to Baldock station, and this grade commences about 300 yards before you get to the ginhouse, and from there on it is apparently level to the depot. The grade between Baldock and Appleton is a very heavy grade, and it is necessary to cut these trains in two in order to make this grade. The, steepest portion of this grade is about a mile from Appleton and about 4 miles from Baldock. The grade commences about 300 yards west of the ginhouse. They cut these trains at different places at Baldock, but generally on the west end towards Augusta, and from there they cut them again — they cut them on the grade between Baldock and Appleton. They do not have any certain place to cut them. The trains that they cut are generally freight trains.
    Daniel Carter testified as follows:
    I testified on yesterday afternoon. The train that I heard, although I did not see it, but according to the rolling I took it for a freight train. From the grinding noise, in my opinion, it was a heavy freight train. The train was rolling heavy, and when I crossed the railroad and got on the hill it blew two of three times, and as I was coming on from the railroad, as I got on the hill it got to blowing, and I could see a fight two or three times as I got on the hill. The light I saw was from the puffing and blowing and from that I took it for granted that it was a freight train and it was coming towards Appleton. From the noise the''train made I believe it was a heavy freight train. When I saw the train it was going from Baldock to Appleton. I could see. a light from the engine when it exhausted.
    Cross-Examination
    When I saw the fight from the smoke stack the train was between Baldock and Appleton. It was about two miles or more from Baldock. When I saw the fight it was going from Baldock to the town of Appleton.
    Defendant's Testimony
    A. H. Porter testified as follows:
    I held a position as engineer of the Charleston & Western Carolina Railroad Company in October, 1914. I had charge of the track and bridges and roadway generally of the company. I also had charge of the surveying and making blueprints. The blueprint which you hánd me was originally made under my direction and rechecked by me on April 12, 1922. I made it myself. 1 swear that the measurements on this blueprint are correct. Columbia Wallace’s house is 389 feet from the railroad track and on the south side of the railroad. The depot is on the north side and the water tank on the south side. The water tank to the gin-house is 1,144 feet. The main line of the railroad to the ginhouse from Augusta side is 187 feet, and on the east side next to Appleton it is 184J4 feet. The ginhouse is built on the same foundation that the old ginhouse was on. It is 3 y2 miles to Baldock from Martin’s. Down in that woods it is a slight grade up and down. Just before you get to Baldock, a few hundred yards west of Mr. Metz’s ginhouse, it is practically level or slightly down grade on down to the trestle, and then the big grade starts up, and from the depot to the water tank it is a little down. It is about 700 or 800 feet and perhaps’ 1,000 feet from the trestle to the water, tank.
    G. M. Williams testified as follows: '
    In October, 1914, I lived at Baldock, and live there at present. I am deputy sheriff of Allendale County. In October, 1914, I lived a* quarter of a mile or better from Baldock near Mr. J. S. Calhoun’s house, and I lived nearer Baldock than Mr. Calhoun. I remember when they had the fire. I remember that I went down to the fire and saw Mr. Metz and Mr. Johns and some negroes. I did not see Mr. Calhoun ¡¿until after daylight. I heard some shooting and that, waked me up and I saw the fire. When I got to the fire the ginhouse was burned, and it was misting rain at the time. It was not raining when X went to bed, but when my son came in about 11 o’clock he said he was wet. The wind and rain was blowing in on the front as I went out, and that would take it to the railroad track from the ginhouse. The smoke and sparks from the fire were blowing across to the railroad track. They rolled 11 bales of cotton out of the way in between the depot and gin-house. The wind was coming towards the cotton and some of it was on fire. They rolled the cotton 10 or 15 feet. The ginhouse is not far off the right of way. The boiler from the ginhouse is about 20 feet, I guess. The sawmill is about 25 or 30 feet from the gin, I guess. The sawmill did not burn up. I have known negroes to go to the ginhouse and play cards. I have not seen them, but they will smoke while playing generally. That was under the ginhouse.
    Cross-Examination
    No; I did not see them smoking there around 2 or 3 o’clock in the morning. When X got there the wind was coming from the west, and I spoke to Joe Johns about it. When I got to the fire the wind was blowing from the west towards the depot. We stood out there and talked about it, and there was a little mist of rain. When I got to the fire the ginhouse was burned. X did not bring a bale of cotton later on jn the day to Baldock to be ginned. I am certain I was at the fire.
    Redirect Examination
    I did not have a bale of cotton with J. P. Johns. It was before daylight that I got there and saw the fire. It was drizzling rain at the time. The ground was damp. There was a slight grade up on the railroad going from Baldock to' Appleton — a little rise — and it is a little down grade for about 300 yards above the ginhouse, and they always unhook and get water and back back and hook up to go to Appleton. There is a little rise beginning at about the switch, and then the grade starts a little way the other side of the tank. The grade at Baldock is hardly noticeable; if anything, it is down grade to the water tank.
    Clarence Hazel testified as follows: ■
    On October 24, 1914, I was at Baldock and boarded with Columbia Wallace. I am a carpenter and was working on the white folks schoolhouse at Baldock. On the morning of the fire Columbia Wallace was calling for somebody to give her a lamp, and she got one from Steve Hicks, and they said there was a fire, and me and Steve got up and saw it was the ginhouse, and we went over there when we got our shoes on. When we got up the weather was damp and misty. When we got to the ginhouse the ground was damp. In going from the ginhouse to Columbia Wallace’s house, we had to cross the railroad track towards the depot, and the wind was blowing directly from the west, from the gin-house to the railroad track. It was blowing that way when we were going to see the fire. The wind was blowing towards the depot and away from the ginhouse as we rolled some cotton here, and the sparks blowing from the ginhouse set that cotton on fire. Steve Hicks went down there with me.
    Cross-Examination
    I know that when I went there the wind was blowing from the ginhouse to the railroad. I do^ not know how it was blowing before I got there and before I woke up. I know that I got to the fire among the first. I am sure that when I got there the wind was blowing from the ginhouse back down to the railroad, when I saw it; I do not know how it was blowing an hour or two before. I know that it drizzled and rained hard enough that I got damp.
    Redirect Examination
    The wind did not change from the time I left Columbia Wallace’s house until the time I got to the fire, and when I got there it was burning inside and outside. The fire was burning on the west side. The entire west end was burning when I got there. The planing mill was so close to the gin that it could have caught from that. I did not measure the distance from the ginhouse to the planing mill I do not dispute the correctness of the plat.
    Stephen Hicks testified as follows:
    On October 24, 1914, I was working for Mr. W. I. Johns, and was at Columbia Wallace’s house where I was boarding when the fire occurred. Clarence Hazel was boarding there too. We made for the fire when we were told about it. When we got up and went to the fire it was raining and the ground was damp; it must have been raining some little time. The wind was blowing towards the depot, and the wind was meeting us as we were going to the fire between the depot and the fire, it was about midway and it was falling in when we got there, and it seemed that it burned mostly the back end, and it had not got to the bales of cotton in front of the ginhouse. Me and Clarence Hazel rolled off three bales before it got to them. It was burning on the inside and outside when we first saw it on the back end.
    Cross-Examination
    I do not know when Burley Phillips got there, but he was there shortly after we got there. Yes; when we all went down to the fire and crossed the track to the depot the wind was blowing in our face towards the gin. The fire seemed to have started on the back end and was coming to the front. The wind was not blowing hard, not too severely. I cannot say what took the fire from the ginhouse to the planing mill up the hill. I am certain that the fire all during the time I was there was burning from the gin to the depot and railroad track. The fire occurred about 4 o’clock. I do not know how long the ginhouse was on fire before I got there.
    Robbit Whitfield testified as follows:
    In October, 1914, when Mr. Metz’s ginhouse was burned I lived on Mr. Strange’s place near Baldock. I lived south from the ginhouse. I went to the fire, as' I lived pretty close to Columbia Wallace’s house. The weather was cloudy, but it was not raining when I left my door, but it was damp. It was just misting,-and it rained again between then and daylight. The wind was blowing from the ginhouse towards the depot when I was there, and the ginhouse was falling in when I got there. I was about the fourth man to get there. Clarence Hazel and Stephen Hicks were there. I tried to save some lumber.
    J. P. Johns tetified as follows:
    On October 24, 1914, I lived at Baldock and live there now. The fire occurred between 12 o’clock and daylight. I went to Baldock from the south, side by Columbia Wallace’s house, for Columbia Wallace’s house was about 200 yards from the railroad track. I came by Columbia Wallace’s house going to the fire. When I was going to the fire between Columbia Wallace’s house and the crossing I met sparks all of the way from the ginhouse down to her house. Yes; the sparks were coming from the fire from the gin-house towards the railroad track. I did not notice particularly how the wind was blowing. The sparks were coming from the north across the railroad track to the south. I do not know whether it was raining at the time. There was a rain some time during the night, but I do not know how much or when it was. When I was down there I do not know whether it was drizzling or misting or not. My house from the depot to Baldock is one-half mile or more. Mr. Toy Sanders passed my house and told me about it.
    Cross-Examination
    Mr. Metz lives less than a quarter of a mile from me, and at the time of this fire the gin was' the only public gin at Baldock. Mr. Metz’s gin was in good condition and could gin all of the cotton in that section of the country He had a good outfit. I do not recall seeing Mr. Williams at the fire. I do know, however, that Mr. Metz was there when I got there.
    W. E. Miller testifies as follows:
    I was train dispatcher for the Charleston & Western Carolina Railroad Company, October 24, 1914. I have a train sheet in my hand on which is shown the time that all trains passed Baldock from 12 o’clock midnight October 23, 1914, to 8 o’clock a. m., October 24, 1914. The only trains we had during this time were freight train No. 290 east-bound from Augusta to Yemassee. This train left Augusta at 11:45 p. m., October 23d, 1914, and left Robins at 2:20 a: m., the following morning, and this train arrived at Baldock at 3 o’clock a. m., October 24,1914, and at Fairfax at 4:10 a. m., October 24, 1914. This train No. 290 was a freight train. This train did not break at Baldock. The reason I know it did not break at Baldock was that it made schedule time coming from Robins to Fairfax, which is an hour and fifty minutes.
    G. W. Washington testified as follows:
    I was engineer on train No. 290, the train in question. Mr. McCarthey was my conductor. This train got to Baldock about 3 o’clock on the morning of October 24, 1914. When it arrived there we took water and oiled around. I did not break the train there for the Appleton hill. The Appleton hill is between Baldock and Appleton. In coming into Baldock from Augusta side on this occasion as on onther occasions, my train drifted in. This was done in order to stop at the tank and get water. If we had not intended to stop and get water, but on the other hand intended to go right on through Baldock and make the hill, the probábility is that I would have put on more steam in order to make the hill. In going into Baldock I was not working the steam at all. The engine that I had was a superheater. This engine and the ash pan was in perfect condition when it left Augusta. There is a great deal of difference between the superheater and the other engines. A superheater is much stronger and easier to handle, and they do not snatch the fire. The steam is reheated before it goes to the cylinders. In addition to what the other engines have,-such'as ash pan and spark arresters, the superheater has a damper. The damper closes when the engine is not working steam. A hundred, and eighty-six feet is a right smart distance. It was impossible for this engine to throw sparks that far and for them to keep alive and go 186 feet and set out fire. I do not think it possible for a spark of my engine to go that far off, and there was not enough of it. A spark from a super-heater, after it comes out of the smokestack, practically all of it is in pieces and impossible for it to go 186 feet and set out fire. There is a great deal of difference in a train putting out fire in the night and in the daytime. In the daytime it is dry, and in the night it is damp and trash and stuff would be harder to set than in the daytime. I do not recall, during my thirteen years as an engineer, having been charged with setting out fire in the nighttime. My engine, when I got to Baldock, was in first-class shape, and when I left there it was the same. When I stopped my engine at Baldock to get water, it was necessary when leaving Baldock to steam up in order to make the hill. I am quite positive that when my engine was coming into Baldock and passing Mr. Metz’s ginhouse that it was not using any steam at all, and it was just rolling along. 1 stayed at the water tank 8 or 10 minutes, and when I got back on my engine I did not see any fire at the ginhouse at all.
    Cross-Examination
    I was called out an hour and thirty minutes before my train left Augusta at 11:45 p. m., I got to the yard before leaving about one hour and thirty minutes. My engine left at 11:45 p. m. During the hour and thirty minutes before my train left, and when I was at the yard, I put my engine on the train and tested the brakes and oiled the engine and saw after my driving wheels and saw that they were O. K., and that there were no loose nuts. I did not see if the spark arrester and smokestack was in good shape, but everything must have been all right. My train, as I remember, consisted of about 40 cars. I do not know whether or not any of them were empty. I did not have to get out at Baldock. This train was a medium train and not overloaded.
    
      Redirect Examination
    If there was anything wrong with the spark arrester I could have found out by my eyesight by live fire coming out of the smokestack. I do not think it was possible for those superheaters to throw a spark 186 feet and set out fire. An engine in'using no steam sparks do not come out at all. I mean that sparke cannot get out if it is in perfect condition. If there was anything wrong with the engine sparks could get out. I know of my own knowledge that there was nothing wrong with the engine. I did not notice the wind blowing. My engine started to roll before it got to Baldock, and it continued rolling until the engine passed the depot. These spark arresters have meshes in them, but they are closed up. The smoke comes out. I know that you cannot close the whole spark arresters up as there are a certain amount of vents in them. If the vents let out any sparks. I did not see them.
    M. H. McCarthey testified as follows:
    I was conductor on the train that passed Baldock. It left Augusta about 11:45 p. m., and passed Baldock about 3 o’clock on the morning of October 24, 1914. The train slowed up before reaching Baldock, because we had to shut off in order to- stop at the tank. We stopped at Baldock for about ten minutes. I was in the cab at the time and was about opposite the ginhouse. The cab in which I was riding when the train stopped was exactly opposite the gin-house, and I did not see any fire out there at all. I was there at least 8 or 10 minutes, and I did not see any fire there. I was out looking around the train. After the engine had gotten the water, I signaled the engineer,- and the engine pulled out.
    Cross-Examination
    If fire had been set out there, in 10 minutes it would have been big enough for anybody to have seen. There was no big blaze up at the ginhouse when my train was there, and I did not see any fire at all. I did not see a spark.
    Redirect Examination
    My caboose being exactly opposite the ginhouse, if the engine which was away ahead had set out fire as it passed I would have been in a position to see the fire. There was no fire in the ginhouse 10 minutes after the engine passed there. 'I was not standing in the caboose looking at the corner of the ginhouse. There was nothing there that attracted my attention. If there had been a fire up there, I would have seen it.
    Re-Cross-Examination
    Q. Don’t you mean, in fairness to yourself, that you could have seen it? A. I could have seen it, if there was a fire up there.
    W. C. Eitzgerald testified as follows:
    I am an engineer on the Charleston & Western Carolina Railroad Company, and have been for 15 years. I have operated a superheater engine for 8 or 10 years. In so far as putting out fire, the superheater is superior to the other classes of engines, and does not burn as much coal or use as much water and throws very little sparks. An engine that puts out fire, puts out more fire in the daytime than at night, for. the reason that during the night it is damp and sometimes wet. I have never heard in my experience as engineer, an engine putting out fire fifty feet from the track in the night. In my experience as engineer for 20 years, I have never put out fire between 12 o’clock at night and 7 o’clock in the morning. I have never heard of an engineer setting out fire during these hours. I certainly admit that sparks do come out and set out fire, but that it would be impossible for these sparks to set out fire 186 feet from where the sparks come out of the smokestack. In my opinion they cannot do it. When steam is shut off it is possible for the sparks to come out.
    
      Cross-Examination
    No, sir; in .my 20 years experience as engineer I have never set out fire 186 feet from the track while running my engine. I generally watch the sparks go out of the smokestack. I have never seen sparks hit the ground alive 150 feet away. I have seen sparks hit the ground alive near the right of way.
    Q. You don’t know what he had, what kind of engine he had do you? A. No, sir; but I know what is in all of the engines.
    Q. Will you tell that jury whether or not he had a spark arrester that night? A. No, sir; I don’t know what was in that engine.
    Q. You don’t know whether it was properly equipped or not. ? A. No, sir.
    Q. And you don’t know how far it would throw sparks that night? A. No, sir.
    Defendant closes.
    G. W. Owens, recalled, testified as follows:
    I heard Mr. Williams testify that he was at the fire that night or morning, but if he was I did not see him. He came next morning with a bale of cotton about 7 o’clock, and he got there just as I was opening my store. He did some trading with me and said he would pay me when he ginned his cotton and drove off with it. It was a bale of seed cotton that he brought there. He drove the bale of seed cotton up to Mr. Metz’s gin and afterwards carried it off.
    Carl Metz testified as follows:
    I saw Mr. Williams the morning after the fire. He came down there with a bale of cotton for our gin, and he was the closest white man living there, and he didn’t know anything about it. He brought the cotton to the gin.
    
      Messrs. P. B. Grier and Harley & Blatt, for appellant,
    cite: Liability for communicated fires: ' 1 Civ. Code, 1912, Sec. 3226; 83 S. C., 87 S. C., 180. Circumstances as a basis 
      
      for circumstantiffi evidence cannot be presumed, but must be proven: 92 S. E., 1; 100 U. S., 693; 1 Moore, Facts, 600. No testimony on which to base verdict: 99 S. C., 417; 197 S. C., 367.
    
      Messrs. Holman & Boulware, for respondent,
    cite: Grounds of objection must be stated: 79 S. C., 120; 90 S. C., 366; 90 S. C., 513; 92 S. C., 236; 100 S. C., 115; 94 S. C, 324; 110 S. C., 122; 111 S. C, 463. Sufficient evidence to support verdict: 115 S. C., 500; 113 S. E., 73; 80 S. C., 460.
    May 28, 1923.
   The opinion of the Court was delivered by

Mr. Justice Watts.

This is an action for damages by plaintiff against defendant for $5,500, for an alleged cause of action that defendant on October 24, 1924, while operating its engine and train of cars, allowed fire to escape from its engine upon its right of way communicating it to the ginhouse. of plaintiff, thereby destroying the same, to the damage of plaintiff.

The answer of defendant was a general denial. The case was tried in April, 1922, at Barnwell, before Judge De-Vore and a jury, and resulted in a verdict in favor of plaintiff in the sum of $2,100. After entry of judgment, defendant appeals. At the close of all the evidence, defendant made a motion for a directed verdict on the ground:

“Under all of the testimony for the reason that there can be but one inference formed and that is that the fire alleged to be set out and which burned the property described in the complaint did not come from the train or from the right of way of defendant and the defendant is not responsible.”

Which motion was refused.

Defendant files three exceptions, complaining that his Honor improperly allowed certain evidence in over objection, refusal to grant a directed verdict, and after verdict refusing a motion for a new trial.

A careful investigation of all the evidence convinces us that the plaintiff failed by evidence or circumstances to show that he was entitled to a verdict under the allegations of his complaint. The verdict of the jury was not based upon facts proven in the case, but upon presumption, and there were no facts or circumstances proven in the case to warrant a reasonable jury in finding for the plaintiff.

The plaintiff failed to connect the defendant with the injury complained of in his complaint.

The motion for a directed verdict in favor of the defendant should have been granted.

Judgment reversed.

Mr. Ci-iiee Justice Gary and Messrs. Justices Cothran and Marion, concur.

Mr. Justice Fraser (dissenting) : I think there was evidence enough from defendant’s witnesses to carry the case to the jury.  