¶1Dissenting Opinion by
¶2Not unmindful that a nonsuit may be properly entered only where its justification is so evident that rea*484sonable men cannot differ about it, I find myself unable to join in this court’s order of reversal. The unanimous action of the court below, sitting en banc, in refusing to remove the nonsuit, which the learned trial judge granted, appears to me to be patently warranted by the record.
¶3The plaintiffs’ right to recover damages for the destruction of their store and goods by fire depended upon their proving that the fire was caused by the negligence of the defendant Hawk. All that is in the case on that score is derived by basing one presumption of fact upon another, namely, that Hawk carried a lighted cigarette into the storewindow, which he was decorating, and that the cigarette started the fire. Indeed, the presumption that he carried a cigarette into the store window was obliterated by Hawk’s positive denial in his deposition which the plaintiffs offered in evidence in their case.
¶4I would affirm the order of the court below.