
    Turner v. Atlanta & St. Andrews Bay Ry. Co.
    Setting Out Eire.
    (Decided June 8, 1916.
    72 South. 388.)
    Railroads; Setting Out Fire; Evidence. — Where the evidence merely showed that a train passed shortly before the fire which occurred about noon, emitting volumes of smoke and steam, but no evidence as to sparks, the affirmative charge for defendant was justified.
    
      Appeal from Houston Circuit Court.
    Heard before Hon. H. A. Pearce.
    Action by J. C. Turner against the Atlanta & St. Andrews Bay Ry. Co., for damages for destroying property by fire. Judgment for defendant and plaintiff appeals.
    Affirmed.
    The evidence tended to show for the plaintiff that its property was situated on or near the line of the railroad, and was burned about noon of May 30, 1914. The first caught by the side of the carriage where the log ramp ran out to the railroad. About two trains passed that day; one passing a short while before- the fire broke out, going up-grade and emitting volumes of smoke and steam. It appeared that the place where the fire caught was in the toolroom, near the log ramp, and about 80 feet from the railroad track, and that there were quantities of oil stored in the toolroom.
    Lee & Tompkins, for appellant. E. H. Hill, for appellee.
   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.  