#### WALTER A. JORDAN v. JACOB LASSITER, Adm'r.

Where, in an action against a carpenter for the negligent use of fire, by which a house, on which he was working, was destroyed, the question was, whether the plaintiff had assented to, and approved of, the manner in which he had used the fire, it was Held that the facts, that the fire was made at a place where the plaintiff’s agents, with his knowledge, and without objection, had several times made it, and that he declared the burning of the house to be an accident, for which he did not blame the defendant, were some evidence to go to the jury.

*131Action on the case, tried before SaundeRs, <E, at the last Fall Term of Montgomery Superior Court.

The declaration was for negligence on the part of the defendant’s intestate in so using a fire, built near the plaintiff’s house, for the convenience of himself and his agents, as to cause the destruction of the building, and of a quantity of lumber procured for the construction of the same. There was evidence, tending to shew, that defendant had made the fire quite near the building, about which there were shavings and other combustible materials ; that there was considerable wind, and he had not taken proper caution to prevent the fire from communicating with the shavings; that while he and his assistants were engaged at work the shavings took fire, and although all proper exertions were made to extinguish the flames, the building and lumber were entirely destroyed.

The defendant proved, by one Morris, that the fire, on this occasion, was built at the spot where he, (the witness,) who was an employee of the plaintiff, had often built it before ; that the plaintiff was frequently present at the fires thus made by him, and made no objection to them'; that there were some shavings about these fires then, but not'so many as when the house was burned. Another witness proved that, on one occasion, shortly after the house was destroyed, the plaintiff said it was an accident, for which he did not blame Hicks, ("defendant’s intestaté).

The charge of his Honor as to the general question of negligence, &c., was not excepted to, but the defendant’s counsel moved his Honor to charge the jury, that if they believed, from the evidence, that the plaintiff assented to, or approved of, the building of the fire at the place where it was, the defendant’s intestate would not be liable. His Honor declined so to instruct the jury, saying, that there was no evidence to justify such a charge. The defendant’s counsel excepted.

There was a verdict for the plaintiff, and judgment, from which the defendant appealed.

*132Mendenhall, for the plaintiff.

Kelly, for the defendant

Battle, J.

The only question presented in this case, is, whether there was any testimony to be submitted to the j nry upon the prayer of the defendant, for an instruction that, “ if the plaintiff assented to, or approved of, the building of the fire” at the ¡Race mentioned by the witnesses,, the defendant’s intestate would not be liable.” if there were any such testimony, it was error, in the Judge, not to have left it to be weighed by the jury, but if there were none, then, he was right in so deciding. It is often a difficult question to determine whether there is, or is not, any evidence tending to establish a fact, which it is necessary for one of the parties to prove. That difficulty was felt and expressed by this Court in the cases of Cobb v. Fogleman, 1 Ire. Rep. 140; State v. Revels, Busb. Rep. 200, and Sutton v. Madre, 2 Jones’ Rep. 320. Circumstances, which merely raise a conjecture of a fact, ought not to be submitted alone to the jury as proving, or tending to prove, that fact, but, if they be such as to raise more than a mere conjecture, the Judge cannot pronounce upon their sufficiency to establish the fact, but must leave them to be weighed by the jury, whose exclusive-province it is to decide upon the effect of the testimony. In the present case, the plaintiff had shown enough to fix the defendant’s intestate with negligence, so that the burden was thrown upon the defendant to release his intestate from liability by proof, either positive, or circumstantial, that the plaintiff “ had assented to, or approved of,” the act which was alleged to be culpable neglect. Upon a careful examination of the testimony, we think that there were some circumstances, testified to by some of the witnesses, which tended to show this assent or approval. We allude to that part of the testimony which proved that the fire was built by the intestate in the same place in which the plaintiff, or his hands, had made it and renewed it from time to time, for several weeks before, and that after the house was burnt, the plaintiff said it was an accident, and *133that he did not blame the 'intestate. It is true, that -one witness stated, that about three weeks before the house was hurnt, 'he heard the plaintiff say to the intestate, that he thought the fire was too near the house ; but, at most, that was only-evidence in opposition to that of the other witnesses, who testified that the plaintiff never objected to the fire being made at the place designated, and .could not prevent the latter testimony, if it were otherwise proper, from being submitted to the consideration of the jury. "Whether it was sufficient to establish the fact contended for by the defendant, it is not for us to say ; but, thinking as we do, that it was some evidence, tending to the establishment of that fact, we are bound to declare that the presiding Judge erred in holding that-it was not so, and on that account refusing to permit it to go before the jury. The judgment must be reversed, and a venire denovo awarded.

Pee CueiaM, Judgment reversed.