SEPARATE CONCURRING OPINION. I concur in the result reached by our learned Commissioner, but not in all of the language used in dealing with the crucial question in the case, namely, the propriety of the court's action in giving defendant's instruction No. 2. The first paragraph of that instruction tells the jury that "it is not sufficient to entitle the plaintiff to a verdict in this case that there may be a probability, or even a strong suspicion, that the fire mentioned in the evidence was caused by sparks from one of defendant's trains." I think that this part of the instruction is misleading, in that its effect is to tell the jury that they cannot return a verdict for plaintiff upon evidence which goes no farther than to make it appear probable that the fire was set out by sparks from defendant's engine. It is true that it is the duty of the jury to determine the ultimate issue of fact, viz., whether the fire did or did not orginate as alleged in the petition. And in order to return a verdict for plaintiff the jury must believe and find that the fire was in fact set out by a spark or sparks from defendant's engine. [See Taylor v. Lusk,194 Mo. App. 133, 187 S.W. 87.] But in order for them to so find, it is not necessary that there be direct and positive evidence that the fire so originated; on the contrary the jury may make such finding upon all of the facts and circumstances in the case as shown by the circumstantial evidence adduced. And between two hypotheses, appearing from such evidence, the jury may choose that which in their judgment is the more reasonable and probable, and, by adopting that hypothesis, say by their verdict that the fire did or did not originate in the manner alleged in the petition. And in so determining this ultimate issue of fact, the jury may rightfully adopt the hypothesis that the fire was communicated by a spark or sparks from defendant's engine, even though the evidence adduced in support thereof is not such as to entirely negative *Page 206 every other hypothesis as to the origin of the fire. [See State ex rel. v. Ellison, 268 Mo. 239, l.c. 250, 187 S.W. 23.] Under the circumstances, the jury, in arriving at their verdict, must of necessity reckon with the probabilities in the case. And that portion of the instruction quoted above would doubtless cause a jury to believe that under the evidence here adduced they could not rightfully find in favor of plaintiff, though the evidence made it appear altogether reasonable and probable that the fire was communicated from defendant's engine; whereas, in truth, the jury could with propriety return a verdict for plaintiff upon just such evidence, if it sufficed to induce the belief in their minds that the fire occurred in such manner.
As pointed out by our Commissioner, the court by this instruction, in effect, refers to evidence such as would raise a probability as to the origin of the fire as being of less strength or probative force than evidence tending to raise a "strong suspicion" as to the origin thereof. But apart from this, the first paragraph of the instruction, is I think, misleading, for the reason stated above, and the effect thereof prejudicial to plaintiff.
What follows in the instruction does not, I think, cure or render harmless the portion thereof set out above, if that be possible. The instruction, taken as a whole, would doubtless create the belief in the minds of the jury that they could not find that the fire originated from a spark or sparks from defendant's engine, in the absence of positive testimony to this effect, though the circumstantial evidence made it appear reasonable and probable that such was the fact.
The concluding portion of the instruction may be subject to criticism on the ground that it contains an unwarranted comment upon the character of the testimony adduced by plaintiff as to the origin of the fire, i.e., as being "purely and altogether circumstantial;" but whether this alone would constitute reversible error we need not say. Becker, J., concurs in these views. *Page 207