
    Wood vs. The Chicago, Milwaukee & St. Paul Railway Company.
    
      Evidence.
    
    Wliere the question, in what part of a certain building a fire commenced, was material, it was error to permit a witness, who had not seen its commencement, to state “ in what part of the building-, judging from its appearance when he first saw it, and from all the circumstances, the fire originated.”
    APPEAL from the Circuit Court for Eond du Lao County.
    Action for the value of plaintiff’s goods destroyed by fire while stored by defendant as a warehouseman, in its warehouse at Boscobel in this state. The complaint alleged, and the answer denied, that such destruction was caused by defendant’s negligence.
    The error for which the judgment was reversed will sufficiently appear from the opinion.
    Plaintiff had a verdict and judgment; and defendant appealed.
    
      Jno. W. Cary, for appellant.
    The cause was submitted for the respondent on the brief of George C. Hazelton,
    
    who cited 1 Greenl. Ev., § 440, and People v. Eastwood, 14 N. Y., 562.
   Ryan, C. J.

It appears to have been a material question of fact on the trial, bearing on the negligence imputed to the appellant, in what part of the building the fire originated. No witness saw its commencement. One witness, who saw it after its commencement, was asked by the respondent to state in what part of the building, judging from its appearance when he first saw it, and from all the circumstances, the fire originated. It was for the jury, not for the witness, to answer that question. It was for the witness to state facts within his knowledge, and for the jury to determine what conclusion the facts warranted. Yet the witness was permitted, under exception, to give his opinion where and how the fire originated; and at least one other witness was allowed, in like manner, to give his opinion and usurp the province of the jury.

The statement is sufficient without discussion. It would go to overturn the whole common-law theory of trial of issues of fact, to uphold a verdict rendered on such evidence.

By the Court. — The judgment is reversed, and the cause remanded to the court below for a new trial.  