All the counts of the complaint except the third allege the origin of the fire'to have been by the omission of sparks from a passing engine operated by defendant. The evidence relied upon to prove its origin, as alleged in the counts, ivas circumstantial. And if it afforded a reasonable inference upon which the jury could have predicated a determinaton that the fire originated by means of sparks thrown by defendant’s engines, then the motion to exclude was properly overruled and the affirmative instruction requested by defendant was properly refused.
The facts proven were these: That in about forty minutes after the passing of one of defendant’s trains the fire was discovered in close proximity to the track, and that about fifteen minutes before this train passed, there was no agency on the premises to which the origin of the fire could be attributed. The train was traversing a a up grade at the point where the fire was discovered. From these facts we think the jury may fairly conclude that- the fire originated, as alleged, nor do- we think that *578it can be affirmed as matter of law that their probative force was entirely destroyed or emasculated, so as to take the case from the jury by a statement of a witness that at another and different place, he saw no sparks being emitted by the engines as they passed, especially in view of the tendency of the testimony that it was daylight when he saw the engines.
The evidence being sufficient to authorize the jury to conclude that the fire originated as alleged, such conclusion would cast the burden upon defendant of showing a proper handling of the train and a proper equipment of the engines. — Tinney v. Cent. Ry. of Ga., 129 Ala. 523; L. & N. R. R. Co. v. Marbury Lumber Co., 125 Ala. 237.
The motion for a new trial is not insisted upon.
Affirmed.
McClellan, C. J., Simpson and Anderson, J. J., concurring.