Central Arkansas & Eastern Railway Co. v. Goelzer , 92 Ark. 569 ( 1909 )

Hart, J.,

(after stating the facts.) The act of April 18, 1907, malees railroad 'corporations liable in damages for the loss .of or injury to any property, which may be caused by, or result from, the operation of its train, and provides that in such action the railroad corporations may not plead or prove as a defense thereto that the loss or injury was not the result of negligence or carelessness on the part of such defendant or its employees. In the case of St. Louis & San Francisco Rd. Co. v. Shore, 89 Ark. 418, this act was held to be constitutional.

In the case at bar the principal contention of the defendant is that there is not sufficient evidence to support the verdict. It is true that in this case the engineer in charge of the locomotive alleged to have caused the fire testified unequivocally that the engine was properly equipped with a spark arrester, land was properly operated, and that in such condition it was impossible for sparks as large around as a lead pencil to be emitted from the engine, and that these sparks could not have been thrown 53 feet from the railroad tracks and have set fire to the barn.

On the other hand, plaintiff’s witnesses were equally positive that sparks did come from the engine on the evening in question, land that they were flying high. This testimony tended ■to contradict the engineer, and to show that sparks did come from the engine and fly through the air towards the barn. The ■testimony on the part of the plaintiffs also tended to show that the fire occurred a short time after the engine passed; and there was no other explanation of the origin of the fire.

This was sufficient evidence from which the jury might have inferred that the fire was caused by sparks emitted from defendant’s engine. St. Louis Southwestern Ry. Co. v. Trotter, 89 Ark. 273.

We cannot invade the province of the jury by attempting to pass upon the credibility of the witnesses and the inferences which the jury may -have legitimately drawn from the evidence are conclusive upon us. We think the jury might have found, from all the facts and circumstances adduced in evidence, that the fire was caused by sparks emitted from .defendant’s engine, and therefore we will not disturb the verdict.

Counsel for defendant also insists that the testimony of plaintiff’s witnesses to the effect that they had seen sparks flying from the engine within two'or three weeks prior to the time .of .the fire was not competent. The witnesses had testified that defendant operated only one engine on its line of railroad, and we think -this testimony was competent as tending to show that sparks were emitted from .the engine, and thus contradict defendant’s engineer.

Counsel for defendant also contends that the testimony of J.oe Gates as to the attorney’s fees was incompetent because ■he did not testify that he was a lawyer. The witness testified •that $100 was a reasonable attorney’s fees in each case. He stated that he had discussed the matter with “other attorneys” and was familiar with the customary prices in ’such cases. We think this was sufficient to enable him to testify on the question. The jury assessed a fee of $50 in each case.

We do not find any prejudicial error in the record, and •the judgment is affirmed.