#### Robert M. Bingaman, Appellee, v. Toledo, St. Louis & Western R. R. Co., Appellant.

Appeals and ebbobs—when judgment will he affirmed. If no prejudicial error appears and the verdict is sustained by the evidence, a judgment will be affirmed.

Trespass on the case. Appeal from the Circuit Court of Coles county; the Hon. James W. Craig, Judge, presiding. Heard in this court at the May term, 1908.

Affirmed.

Opinion filed November 17, 1908.

C. E. Pope, for appellant; Clarence Brown and Charles M. Sohmettau, of counsel.

Bryan H. Tivnen, for appellee.

Mr. Presiding Justice Puterbaugh

delivered the opinion of the court.

This is an action in case by appellee against appellant to recover damages for the loss of certain buildings and personal property alleged to have been destroyed by fire communicated by a locomotive engine operated by appellant upon its railroad. The trial resulted in a judgment in favor of appellee for $250. The negligence charged in the first count of the declaration is that the defendant failed to keep its right of way free from grass and other combustibles whereby sparks escaped from one of its locomotives, ignited said combustibles and caused fire to spread to and upon the land of the plaintiff and destroy certain buildings, trees and chattel property of the plaintiff.

The negligence charged in the second count is that the defendant failed to equip a certain one of its locomotives with the best and most approved appliances to prevent the escape of fire, and to keep the same in suitable repair, whereby fire escaped therefrom and burned and destroyed the plaintiff’s said property. Appellant admits in its statements of facts the destruction of the property by fire and that fire was dis*443covered in the barn of appellee immediately after a freight train upon the railroad had passed the vicinity of the premises. There was no evidence tending to show that the fire originated from any other source, and the jury was warranted in finding from all the surrounding facts and circumstances, that it was communicated as charged in the declaration. In this state of the proof, the question whether the court erred in refusing to instruct the jury to disregard the first count of the declaration becomes unimportant. For the same reason the error in appellee’s sixth instruction, even if not cured by appellant’s eighth, which correctly stated the law, was not harmful.

We find no prejudicial error in the rulings of the court upon the other instructions or the admission of evidence.

The motion to tax costs of additional abstract to appellant is denied.

The judgment of the Circuit Court is affirmed.

Affirmed.