tribunals must govern. Cincinnati &c. R. Co. v. Rankin, 241 U. S. 319, 60 L. Ed. 1022. Hence such statute and decisions will not be referred to.

When we come to consider the common law rules under discussion as accepted and applied in Federal tribunals with respect to injury to animate freight, to-wit, live stock, in a case where a contract exception is relied on as a defense, whatever may be the difference in other of such rules as applicable to animate as distinguished from inanimate freight, there seems to be no room for valid dissent from the conclusion that the burden of proof, at the least, which is required of it in that behalf, is on the carrier in two particulars, namely: (a) It must prove that, at the time the injury may have occurred, the special contract exception relied on was in operation; and (b) it must at least prove (unless such fact appears from the plaintiff's evidence) that the injury was of such a nature that it may, with equal probability, in accordance with the evidence have been occasioned by causes which were within the contract exception relied on. 6 Cyc. 524; 10 C. J., sec. 581, p. 379. Certainly this is true where the proof of the plaintiff shows that the injury was due to human agency. 6 Cyc. 524.

In the instant case, while there was evidence for defendant to the contrary, there was ample evidence for plaintiff to establish the fact that the injury to the stock complained of was due to human agency, as appears from the statement of facts above, and on the demurrer to evidence this court must consider such as the fact in the instant case.

In the instant case the defendant relies on the special contract exception from liability contained in the contract of carriage with the Union Pacific Railroad, quoted in the above statement of facts, and also on the special contract exception from liability contained in the contract of carriage with the defendant, also quoted in the above statement of facts. Since, for this reason above stated, this action is not based upon the former contract, the exception from liability clause thereof cannot be relied on by the de

fendant. This leaves the defense under consideration entirely dependent upon such clause of the latter contract of carriage.

Now, since the burden of proof at the least which is required of it, as above noted, is upon the defendant in both, of the particulars above mentioned, if the defendant has failed in its proof in either particular, such failure is fatal to its defense now under consideration.

It is urged upon our consideration by defendant that the testimony for the plaintiff, when read in connection with certain entries on the contract of carriage with defendant, shows that the stock was accompanied by persons in charge of it within the meaning of clause 5 thereof, relied on by defendant, so that such exception clause was put in operation in the instant case, whereas it is urged on the part of the plaintiff that the fact in question is not directly proved but that it is a mere inference, which the defendant, as demurrant to the evidence has deprived itself of the right to draw; but, as we shall presently see, it is unnecessary for us in the instant case to pass upon that controverted question.

Nor is it necessary for us to consider the ground of defence mentioned in the above statement of the case, to-wit, that the burden of proof to show the cause of the injury to the stock was on the plaintiff because the stock was accompanied by persons to take care of, feed and water it. It is not necessary for us to consider such ground of defence because such burden of proof, if it were conceded to exist, did not arise unless the defendant had at least shown by a preponderance of the evidence which can be considered by us that the injury to the stock was of such a nature that it may, with equal probability as aforesaid, have been occasioned by causes which were within the exception from liability clause of the contract aforesaid on which such ground of defence rests. This, as aforesaid, we shall presently see the defendant has failed to do.

The pivotal question then, upon which the defence under consideration turns, and upon which its decision depends in the instant case, is, therefore, the following:

2. Has the defendant sustained the burden of proof resting upon it, at the least which is required of it in that behalf, to show by a preponderance of evidence, (b) that the injury to the stock was of such a nature that it may, with equal probability in accordance with the evidence in the case, have been occasioned by causes which were within the exception from liability clause aforesaid of the contract of carriage with defendant?

The exception from liability clause aforesaid of the contract of carriage with defendant, above quoted, is as follows:

"Sec. 5. The shipper at his own risk and expense shall load and unload said live stock and in case any person shall accompany said live stock in charge of the same, (shall) take care of, feed and water said live stock while being transported, whether delayed in transit or otherwise

Now the evidence for plaintiff, (as noted in the above statement of facts), was direct and positive that the cars containing the stock were not over-crowded or over-loaded; that the stock was in sound and good condition when delivered to defendant for transportation; that the injury to it apparent on its arrival at destination was of such nature that the jury were warranted in drawing the inference of fact that such injury was not occasioned by negligence in loading or unloading or in lack of care of it by any person accompanying the stock in charge of it, or from lack of feed or water. There was evidence for defendant, it is true, in conflict with that of the plaintiff on this question, but on the demurrer to evidence such conflicting evidence cannot be considered by us. It is therefore manifest that in the instant case the defendant has not proved by any evidence which is before us that the injury complained of in the declaration was of such a nature that it may with

equal probability as aforesaid, have been occasioned by causes which were within the exception from liability clause of the contract aforesaid relied on by defendant. On the contrary, the evidence for the plaintiff, as we must consider it, establishes the affirmative fact that such injury was of such nature that it was not occasioned by causes within such exception.

The question last above stated must therefore be answered in the negative.

For the foregoing reasons, we are of opinion that there was no error in the action of the court below in overruling the demurrer to evidence, and the judgment complained of will be affirmed.

Affirmed.

TORBERT v. ATLANTIC COAST LINE RAILROAD COMPANY.

(Richmond, March 28, 1918.)

1. RAILROADS-Fire Damage-Evidence.-Where the undisputed fact appeared that the train of the defendant, from which plaintiff's evidence tended to show the fire originated, passed along by the shed between lines of box cars standing on each side of the main line track, which of itself, according to known physical laws, in the resistance given by the box cars to the air displaced by the moving train, might have caused ample disturbance of the air to have carried sparks or coals, if thrown out by the engine of that train, the short distance of twenty-five feet from the engine to debris on the side of the shed where the fire originated according to the testimony for the plaintiff, whether or not the engine in fact threw sparks and coals as it passed said locality was a material fact, upon the plaintiff's theory of the origin of the fire, and it was error to exclude testimony offered to the effect that engines of the defendant drawing freight trains would throw sparks and coals as they passed the point where the property burned was located.

2. INSTRUCTIONS-Weight of Evidence-Jury.-An instruction upon the subject of the weight and effect of the evidence must be carefully drawn so as not to invade the province of the jury under our procedure. The jury are the sole judges of the credibliity of witnesses and of the weight to be given to the evidence in a

case.

3. IDEM-Evidence-Inference. It was error, in the case at bar, to instruct the jury that they could not "presume from the happening of the fire that it was caused by the defendant * * In other words, it is incumbent upon the plaintiff to show how the fire occurred and the plaintiff cannot leave to the jury the determination of the question by conjecture, guess or random

judgment or upon mere supposition." The jury might properly draw an inference of fact from circumstantial evidence in the case as to whether the engine of the defendant, pointed to by the plaintiff's evidence as to the cause of the fire, did or not throw sparks and coals as it passed the plaintiff's property.

Error to Circuit Court of Norfolk county.

Rumble & Campe, for the plaintiff in error.

Reversed.

Wm. B. McIlwaine, Williams, Tunstall & Thom and Bernard Mann, for the defendant in error.

This is an action for damages by the plaintiff in error (hereinafter referred to as plaintiff) against the defendant in error (hereinafter referred to as defendant) for the destruction of a shed and its contents of lumber, all owned by plaintiff, by fire alleged to have been set out between midnight and three o'clock A. M. of November 7, 1915, by sparks or coals dropped or thrown from one of the locomotive engines or trains of the defendant.

Certain evidence for plaintiff was excluded by the trial court over the objection of the plaintiff; and a certain instruction was given by such court at the request of the defendant over the objection of the plaintiff.

Undisputed Facts.

Plaintiff's wooden shed, containing lumber, with roof covered with metal, was located on the east side of defendant's railroad and immediately adjacent to its right of way. The side of the shed next to the railroad was about 136 feet long, and that side of it was closely weatherboarded with German siding, having no opening therein on the night of the fire. This weatherboarding came practically down to the ground. The eaves of the shed were about fourteen feet high, and about a foot higher than the tops of a line of box cars which were standing on a side track of defendant along by the shed at the time of the fire. The