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jurisdiction to review the judgment by writ of error, but not on appeal

. In such circumstances our statute provides that the appeal shall be dismissed and the cause redocketed on er. for. Orders so providing are therefore entered: Mills' Annotated Code, sec. 388a.

The action was brought by appellee as plaintiff below to recover of the railroad company the sum of eighty-nine dollars on account of the failure by defendant to deliver to the plaintiff a certain hackney cart which defendant received from plaintiff, for the purpose of transporting the same as a comnon carrier for hire from some point in the east to the city of Colorado Springs. There is no question as to the delivery of the cart by plaintiff to defendant for the purpose designated, and the latter admits that it has never redelivered it to plaintiff

. It justifies its failure to do so upon the ground that, through no fault of its own, the cart was destroyed in a fire which burned its freight depot at Colorado Springs in which the cart was stored. The plaintiff alleges that such fire was caused by the negligence of the defendant company. Upon the issues joined there was a judgment for plaintiff for eightyfive dollars, which the defendant has brought here for review.

Numerous errors are assigned, but the argument 80 is confined to a discussion of the insufficiency of the evidence to show negligence and to sustain the verdict, to errors in giving and refusing instructions and to rulings upon the evidence.

The case was begun before a justice of the peace and afterFard taken to the county court by appeal, where the judgment here attacked was rendered. There being no pleadings, the issues involved must be determined from an examination of the evidence and the instructions of the court. The plaintiff in his brief charges defendant with negligence in the following particulars: a. That the railroad company negligently allowed inflammable material to accumulate and remain on its right of way around its freight depot, and that sparks from one of its engines reached this material, and set fire to it, which thence spread to the freight depot, and destroyed the cart; b. That it operated one of its locomotives, which, because not properly equipped or kept in repair, emitted live sparks in passing the depot, which were allowed thus negligently to escape from the locomotive and start the fire in question; c. That its freight depot and surrounding platforms were negligently constructed so that waste and inflammable material could and did accumulate under them; d. That it negligently failed to provide any

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reasonable or adequate means for extinguishing fires in its freight depot.

And in all of said particulars it was charged that the defendant did not exercise the ordinary care required of it in the circumstances of the particular case, and that such negligence, either in whole or in part, was the direct and proximate cause of the injury to the plaintiff.

1. The most important, in fact the pivotal, question in the case grows out of the assignment of the appellant that the verdict is so manifestly against the 81 credible and satisfactory evidence as to indicate bias or prejudice on the part of the jury. The established rule in this jurisdiction is that where there is substantial conflict in the testimony, the judgment of the trial court will not be disturbed. To this general rule there are well-known exceptions, as illustrated in the following cases : Rhode v. Steinmetz, 25 Colo. 308, 315, 55 Pac. 814; Beulah Marble Co. v. Mattice, 22 Colo. 547, 558, 45 Pac. 432; Mitchell v. Reed, 16 Colo. 109, 26 Pac. 342, a case in which the judgment was reversed upon the same ground as here. See Mills' Annotated Code, 474, where a number of similar cases are collected.

One exception is that where the verdict is manifestly against the weight of the evidence, it will be set aside by the appellate tribunal. We think that the case :t bar comes under this recognized exception, as the review of the only evidence which tended to establish negligence on the part of the defendant abundantly shows. The plaintiff produced two witnesses, young girls, aged ten and twelve respectively, who were in their home about four hundred feet northeast of defendant's depot, in which plaintiff's cart was stored. When the fire began, they were looking out of the window toward the depot. They testified that a few minutes before the fire broke out, locomotive No. 553 passed the freight depot, going in a northerly direction, and one of them testified that it was throwing off a good deal of smoke and she saw sparks of a fiery red color escaping from a small hole, about three-quarters of an inch wide, in the smokestack. The day was clear and bright, with a strong wind from the southwest, blowing at the rate of about fifty miles an hour. This witness testifies that she did not notice the hole very much at that time, but had noticed it about a week before, when this engine was switching in the yards. There was also testimony by three or 82 four of plaintiff's witnesses that they saw this particular engine in the yard at that time.

Nothing particularly attracted their attention to it that would tend to fix in their memory its number. It was merely a casual observation. Two of them testify that this engine was one which the defendant company used in hauling the regular passenger trains between Colorado Springs and Manitou, a distance of four or five miles, and that between trains it was also employed in switching in the Colorado Springs yard.

Three witnesses for plaintiff were produced who testified that
about two weeks after the fire they made an examination of .
this engine at the town of Manitou, and there discovered, as
they say, the hole in its smokestack, to the existence of which,
and the escape of sparks therefrom on the day of the fire, the
two little girls testified. The object of this testimony, of course,
was to show negligence by the company in failing either prop-
erly to equip, or keep in repair, the smokestack of this par-
ticular engine, and that it was due to its neglect in this respect
that the fire occurred, which resulted in the destruction of
plaintiff's cart. The defendant produced the engineman, the
fireman, and the brakeman of the Manitou passenger train, all
of whom testified that locomotive No. 553 was not, on the day
of the fire, in use that day, either in the yards at Colorado
Springs, or between there and Manitou, but that the locomo-,
tive then used was No. 554, a companion engine of the same
size, pattern, and general appearance. There was not a par-
ticle of evidence that there was any defect of any kind in loco-
motive No. 554. Another engineman of the company was then
produced, who testified that upon the day of the fire he had
charge of engine No. 553, and it was then being used between
the city of Denver and Petersburg, a distance of about seventy
miles north of Colorado Springs, and was there all the day,
part 83 of the time being used to block a crossing on the rail.
road track over which an attempt was made to build a street
railway track. Other witnesses from the general shops of the
company at Burnham, a suburb of Denver, also testified to the
presence of locomotive 553 upon that particular day at or near
Denver. It is a rule of the defendant company to keep a daily
record of each locomotive in use upon its road. The engine-
man is required by these rules to make a daily report as to
where he has used his locomotive, and this report is sent to the
proper officer at the general shops at Burnham; and is then
spread upon


records of the company in a hook kept for that purpose. These records were produced, and they show that this engine was not in Colorado Springs between the seven

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teenth day of September and the eleventh day of October, and upon the day of the fire it was at or near Petersburg during the entire day, and at the time the fire actually was raging. Other witnesses, employés of defendant, whose duty it was to know the whereabouts of engines, testified in corroboration of the engineman of locomotive No. 553 that it was then, as he testifies, at or near Denver during the entire day of October 1st.

The question then arises, Can the testimony of plaintiff's · witnesses, though positive in its character, being that of persons only casually observing the presence of an engine in the Colorado Springs yard, having no particular object in knowing what number it bore, their attention not being particularly attracted to it, and it being no part of their business to keep any trace of it, be said to be of such weight as materially to detract from the weight, credibility, and sufficiency of the evidence produced by the defendant in that behalf? Not only was the testimony of defendant's witnesses given by men who were engaged in its employment, and therefore supposed to be better informed 84 with reference to this matter, but it was their duty, under the rules of the company, to know what locomotive was in use and where used, and to report that fact to the proper office. In the nature of things, their means of knowledge were much better than those possessed by plaintiff's witnesses. To our minds the fact was established to a moral certainty that locomotive 553 was not at Colorado Springs on the day of the fire, but that its companion No. 554 was the one which the plaintiff's witnesses then saw. When it is considered that the two locomotives were similar in size, appearance and pattern, and that plaintiff's witnesses had frequently seen No. 553 and supposed it was still in use between Colorado Springs and Manitou and in switching in the yards at Colorado Springs, it is not surprising that they mistook the engine they saw for No. 553. The mistake was not unusual or unnatural. It was common.

To this conclusion we come without discrediting in the least the good faith of plaintiff's witnesses, impugning their motives, or questioning their veracity. All reasonable men can readily see how, in the circumstances disclosed by this record, the plaintiff's witnesses honestly were, as they might very naturally be, mistaken in the supposition that they saw locomotive No. 553; and in reaching our conclusion as judges, and as weighing evidence, and ascertaining motive, we cannot lay aside our own judgment and experience as men.

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The positive conviction left in our minds, after reading this record, is that locomotive No. 553 was at or near Denver at the time of the fire, and that plaintiff's witnesses were in error in saying that it was at Colorado Springs. It might be urged, however, that so far as plaintiff's rights are concerned, it makes no difference whether the sparks which caused the fire escaped from locomotive 554 or 553, and unquestionably 85 this is true. The prejudice to the defendant, however, does not consist in the mere fact that evidence that one engine rather than another, if either, was the cause of the injury; but when it is considered that the only evidence as to any defect in defendant's locomotive which caused the fire was that concerning 553, and that there was no testimony whatever that there was any defect in No. 554; and when it is further borne in mind that plaintiff produced witnesses to testify to the existence after the fire of a hole in the smokestack of No. 553, from which other witnesses testified they saw live sparks escaping a few minutes before the fire, it becomes very apparent that such testimony as this must have been exceedingly prejudicial, if, in truth, engine 553 was not then at Colorado Springs. As we read the record, it must have been upon this testimony alone, or very largely, that the jury based its verdict that the defendant was guilty of negligence. It therefore appears that the evidence on which the jury's verdict must be upheld, if at all, is not legally sufficient for that purpose, and the verdict is manifestly against the weight of the evidence. It will not do to say that the verdict of the jury might have been the same had plaintiff's witnesses not identified the engine in question as No. 553. The inquiry is not what effect this identification actually had upon the jury, but what effect might it have had, or what effect would it naturally have upon their minds. We cannot say that they disregarded it in arriving at their verdict, but, on the contrary, it having been admitted and undoubtedly commented upon by counsel, we must suppose that it had a strong, if not a controlling, influence with them. We reverse this judgment upon the ground that the verdict is manifestly against the weight of the credible evidence and to permit the judgment to stand would, in our 86 judgment, be a wrong to the defendant which no court should tolerate.

The equities of plaintiff's claim are not opposed to this conclusion. The destruction of his property by fire probably would not have occurred had he promptly called for, and taken, it from defendant's possession. And while this neglect on his

Am. St. Rep., Vol. 97-6

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