
    Strafford, )
    May 5, 1908.
    Staples v. Boston & Maine Railroad.
    Records of a railroad company purporting to show the movements of trains are not conclusive evidence upon the question whether a locomotive passed a certain point upon the road at a given time.
    The fact that grass and undergrowth near a railroad track were found to be burning soon after the passage of a .train warrants the inference that the fire was caused by sparks from the locomotive.
    Case, for burning tbe plaintiff’s buildings situated near tbe defendants’ tracks in Milton. There was a trial by jury, resulting in a disagreement. The defendants moved for a nonsuit and for the direction of a verdict in their favor, and excepted to the denial of both motions. Transferred from the February term, 1907, of the superior court by Wallace, C. J.
    
      Mathews Stevens, for the plaintiff.
    
      Hivel § Hughes, for the defendants.
   Walker, J.

The principal contention of the defendant is that reasonable men could not find, as claimed by the plaintiff, that a locomotive passed over the track near the plaintiff’s bfiildings about ten o’clock on the evening of the fire, which occurred about midnight, because the record kept by the defendant of the movement of its trains indicated that the last train over the road before the fire passed that point some four hours before. In view of the fact that several of the plaintiff’s witnesses testified that they heard a train in that vicinity at about ten o’clock in the evening, the question presented relates merely to the weight to be attached to the evidence. There is no rule of law that makes the train-sheets conclusive proof of the movements of trains; and it cannot be said as a matter of law that the jury, upon a consideration of all the evidence, might not reasonably find that a train passed the plaintiff’s premises at about ten o’clock.

There was evidence that the stubble on the declivity between the track and the end of the barn had been burned, that the fire extended to a pile of boards near the end of the barn, where the fire was first discovered, and that a brisk westerly wind arose about that time, which, fanning the smouldering fire, would naturally cause it to run toward the barn. Finding that the fire which destroyed the plaintiff’s buildings started in the dry grass by tbe side of tbe track and then worked its way up to tbe barn, tbe jury might also find that it was set by a spark from the locomotive which passed by at ten o’clock, in tbe absence of any other reasonable explanation of its origin. The fact that locomotives frequently emit sparks wbicb fall near tbe track causing fires, is some evidence that where tbe grass or undergrowth near a track is on fire and trains have passed along within an hour or two, tbe fire was caused by sparks from a locomotive. It is not a mere conjecture, but may be a reasonable inference from the facts proved.

Exceptions overruled.

All concurred.  