This is an action on the case, by the appellee against the appellants, for negligently causing the destruction of the plaintiff's property by fire.
The plaintiff offered evidence going to show that plaintiff's mill and lumber yards at Elba, in Coffee county, were located near the defendant's tracks, and on the 8th of September, 1924, about 6 o'clock p. m., after the mill had shut down, defendant's servants in charge of the operation of engine No. 720 engaged in switching cars on the spur tracks near the mill; that the engine emitted live sparks "in large and unusual quantities and size"; that the wind was blowing in the direction of the mill, and at 6:30 p. m. a fire started about 40 feet from the edge of the tracks in some "lumber ends" under a shed, and consumed the property.
The defendant offered evidence going to show that the locomotive was, at the time, properly equipped with spark arrester and such other appliances as were used on well-regulated railroads for the prevention of fires; that the same were in good condition; that the locomotive was at the time properly and skillfully handled; and that on the occasion it did not emit sparks in large and unusual quantities or size.
There is no positive evidence that the fire was communicated to the property by sparks from the locomotive, or that the locomotive was improperly equipped or negligently handled. This was at most left in inference to be drawn by the jury from the circumstances given in evidence.
On the cross-examination of the witness White, defendant's "mechanical foreman" at Dothan — who testified on direct examination that he inspected the locomotive on September 7th, and also on the 9th of September (the day before and the day after the fire), and that its spark arresting apparatus was in good condition — the plaintiff developed testimony showing that the witness continued to inspect this locomotive once a month for as much as three months, after the fire; that it had the same spark arresting apparatus which continued in the same condition; and that this locomotive was used on this same track of defendant's lines from time to time, making trips to and through Elba.
In rebuttal, the court, over defendant's timely and appropriate objection, allowed the plaintiff to show by one Kelly: That the witness worked for the Cooperage Company, about the mill, and about six weeks after the mill was burned, this same locomotive engaged in some switching on these same tracks; that there was out west of these tracks, referred to as the "Y," a plot of grassy ground. Before the engine began to switch on this last occasion, there was no fire, but that a fire "showed up there after the engine began to switch, and the grass burned off in between the tracks, the fire was on the outside." That witness had worked there three years before the fire that burned plaintiff's property, and during the years he worked there, there was no other fires than the two testified about "while that engine 720 was switching."
The defendant made motion to exclude this evidence on the grounds, among others, that the circumstances occurring six weeks after the fire in question were too remote to shed light on the issue; that it was not shown that on this occasion the locomotive emitted sparks of unusual size or in unusual quantities; and this motion was overruled.
We are of opinion that the court committed error in overruling the objection to the evidence and in refusing to exclude it.
As before stated — and this is conceded by the appellee — the question of whether the locomotive was negligently equipped or negligently handled, on the occasion of the fire which destroyed plaintiff's property, was a matter resting in inference to be drawn by the jury, and the only probative force that can be accorded the testimony of the witness Kelly is that from the circumstances detailed by him, the jury could draw an inference that the burning of the grass on the grassy plot of ground was caused by the negligent equipment or operation of the locomotive on that occasion, and from this inference might infer that it was so equipped or operated on the occasion plaintiff's property was burned.
It is a well-established rule that an inference cannot be grounded upon another inference. "The fact used as the basis of the inference, the terminus a quo, so to speak, must be established in a clear manner, devoid of uncertainty." Chamberlayne, Modern L. of Ev. § 415; 10 R. C. L. 870, § 13; Gadsden General Hospital v. Bishop, 209 Ala. 272, 96 So. 145. In Diel v. Missouri Pac. R., 37 Mo. App. 454, the court observed: "To hold that the fact thus inferred or presumed at once becomes an established fact, for the purpose of serving as a base for a further inference or presumption, would be to spin out the chain of presumptions into the regions of the barest conjection." See, also, United States v. Ross, 92 U.S. 281,23 L.Ed. 707; Atchison, Topeka Santa Fé R. Co. v. Baumgartner, Adm'r, 74 Kan. 148, 85 P. 822, 10 Ann. Cas. 1094, and note, page 1096, where the cases are collected.
For the error in admitting this testimony, the judgment is reversed.
Reversed and remanded.
ANDERSON, C. J., and SAYRE and THOMAS, JJ., concur. *Page 486