OPINION ON PETITION TO REHEAR. This case is again before us on petition for a rehearing, in which it is strenuously insisted that we erred in our original opinion in not reversing and dismissing the action.
First, it is insisted that we erred in saying, "People in the neighborhood saw live sparks blowing out from the smoke stack of the engine." Counsel insists that this statement is inaccurate if we meant that people saw the engine emitting sparks as it passed the barn. We attach no importance to the word "neighborhood," but used the word in the sense of vicinity or nearness to the barn. Neighborhood is a relative term, and people who live within a quarter, a half, or even a mile or two of each other in the country are in the same neighborhood, whereas one would not use "neighborhood" strictly in that sense in the city. We think the use of this term was correct, especially when we followed it up by quoting what the witnesses stated and showed that they lived within a quarter, a half and three-quarters of a mile of the barn when they saw the sparks emitted.
Second, it is insisted that we erred in saying, "that when the train was passing it was making a great deal of noise and sparks were blowing out of the smoke stack and being carried some distance by the wind." It is insisted that this meant when it passed the barn it was doing these things. We used this expression in connection with the train passing in that vicinity or neighborhood, and we followed up the expression by going over what each witness stated in that respect and also stating where the witnesses were located, hence we think there is nothing in this contention.
Third, it is strenuously insisted that we erred in not reversing the case because there was no evidence that the sparks emitted from this engine set fire to the barn. As recited in our original opinion, there was proof that the engine emitted sparks within from a quarter to three-quarters of a mile before it reached the barn; that the engine was pulling hard and made a great deal of noise while going down grade in passing Mrs. Johnson's home to such an extent that it shook the house. Another witness said that it was pulling mighty hard and was roaring within a quarter of a mile of the barn and while going down grade. The wind was blowing very hard and the fire was seen to blaze within ten or fifteen minutes after the train passed. There was no other cause of the fire shown, hence there was sufficient evidence for the case to go to the jury. Defendant's witnesses say the engine was perfect and that the spark arrester was in perfect condition and therefore it was impossible for sparks from the engine to *Page 117 set fire to the barn. Therefore it was a question for the jury. The jury passed on the question and resolved the issues in favor of the plaintiff below. There was some evidence to sustain the verdict and we think there is nothing in this contention.
Fourth, it is insisted that the court erred in not considering the affidavits filed on the motion for a new trial, for the reason that after the charge of the court it was stated in the bill of exceptions "that defendant on motion for a new trial offered and read the following affidavits." There were copied several affidavits which were authenticated by the court. Then followed, "Plaintiff offered the following counter affidavits," and several were copied into the bill of exceptions; but it is nowhere shown that this was all the evidence on motion for a new trial. We are still of the opinion that this is not sufficient, as it must affirmatively appear that the bill of exceptions contained all the evidence on motion for a new trial.
"The rule of practice is well settled in this State that the ruling of a trial judge upon a question involving disputed or controverted facts will not be reviewed by the Supreme Court where the record fails to show affirmatively that it contains all the evidence heard by the trial judge on such question; and this rule of practice obtains in respect of and applies to every part of the record pertinent to a disputed question, whether the same arises upon a motion for a new trial, plea or otherwise, equally with the facts pertaining to the general issues." Eatherly v. State, 118 Tenn. 371, 101 S.W. 187.
It results that the petition for a rehearing is denied.
Faw, P.J., and DeWitt, J., concur.