Gulf, M. N.R. Co. v. Sumrall

*58 Anderson, J., delivered the opinion of the court.

Appellee, L. J. Sumrall, brought this action in the circuit court of the first district of Jones county against appellant, the Gulf, Mobile & Northern Eailroad Company, to recover damages to his land cafised by fire alleged to have been set out from one of appellant’s loco-' motives.^ There was-a verdict and judgment in appellee’s favor, from which appellant prosecutes this appeal. Appellaut’s request for a directed verdict was denied. Up *59 on that action of the trial court appellant bases its ground for reversal.

The testimony that the damage done appellee’s land by a fire set out by appellant’s locomotive was exclusively circumstantial; therefore, to determine the question at issue, the jury were left alone to inferences deducible from the proven facts.

Appellant’s position is that, where circumstantial evidence alone is relied on, it must exclude every other probable cause of the injury complained of than the one upon which recovery is based. We find no fault with appellant’s statement of the governing principle of law. The difficulty arises in its application to the particular case. It is true that, from the proven facts and circumstances in this case, the jury might have reasonably inferred that the fire in question originated, either from appellant’s locomotive or from another source, and if one of those inferences, under the testimony, was as probable as the other, appellee would not have made a case for the jury. But, as we view the testimony, the jury were justified in finding that the inference that the fire was set out by appellant’s locomotive was stronger and more probable than that it was set out from another cause. That made the question an issue of fact for the jury.

It is a rare case, depending entirely on circumstantial evidence, that should be taken from the jury. We think it was a question for the jury in this case whether or not, as between the two probable causes of the fire, the one that it was set out by appellant’s locomotive was the more probable; or, putting the thought in other words, whether that probability was stronger than the other probability.

Affirmed.