
    J. H. Smart et al., as Partners, etc., v. The Missouri Pacific Railway Company.
    No. 16,079.
    
      Negligence — Injury by Fire — Instructions. In an action to recover for injuries caused by a fire alleged to have been set out by defendant’s engine, the refusal of instructions requested by the defendant held not to have been error.
    Error from Morris district court; OSCAR L. MOORE, judge.
    Opinion filed June 5, 1909.
    Affirmed.
    
      Dennis Madden, for the plaintiffs in error.
    
      B. P. Waggoner, and J. M. Challiss, for the defendant in error.'
   Per Curiam:

The special finding that the defendant did not set the fire ends the case. The plaintiffs offer nothing convincing to show that this finding was induced otherwise than ■ by the evidence, which overwhelmingly supports it.

The gist of the third request is this: If the circumstances present a reasonably adequate explanation of the fire on the hypothesis that it was set out by the engine the jury may so find. This is precisely what the court undertook to say in the instruction given. The phraseology employed is technically somewhat inapt, but the meaning is unmistakable. From all the expressions used, rfead together, the jury understood well enough how to deal with the evidence offered by the plaintiffs. The plaintiffs’ discomfort is occasioned by the fact that they produced no evidence which could prevail against the defendant’s proof, if the latter was accepted by the jury as true.

The fourth request singled out a particular circumstance, held it up before the jury, told them to take it •as evidence, and told them its weight and effect under certain conditions. Of course this request was properly denied.

The jury were properly advised that the burden rested upon the plaintiffs to show that the defendant set out the fire. Since they failed to establish this indispensable fact it is immaterial what occurred at the trial respecting other features of the case.

The judgment of the district court is affirmed.  