Summary
In Moore v. R. R., 124 N.C. 338, which in some of its features is very similar to this, there was evidence tending to show a foul right of way, that the fire originated on the right of way from defendant's engine, and also evidence that it originated off of the right of way, and, setting fire to the foul matter on it, burned plaintiff's property.
Summary of this case from Bowers v. R. ROpinion
(Decided 4 April, 1899.)
Railroads — Injury by Fire — Negligence.
1. Where it is admitted that defendant's engine was in good condition and had a proper spark-arrester, and was skillfully operated, the question of negligence in having defective machinery is eliminated.
2. If sparks should escape from such an engine, thus managed, and ignite combustible matter along the right of way, the defendant would be liable for injuries resulting, not because the sparks escaped, but for allowing inflammable matter to remain on its premises.
3. If, however, sparks from such an engine go beyond defendant's right of way and ignite such matter over which defendant has no control, the defendant would not be chargeable with negligence, nor would it be so chargeable if the fire originated outside the right of way from some other cause, communicated itself to the right of way and then to plaintiff's premises.
(339) ACTION to recover damages for injury to land by fire alleged to have originated from sparks from defendant's engine, through negligence, tried before Adams, J., at February Term, 1898, of DUPLIN.
Allen Dortch for plaintiff.
Junius Davis and H. L. Stevens for defendant.
This action is for damages in burning the plaintiff's timber trees, wood, undergrowth and other property adjoining the defendant's right of way. The allegation is that sparks, emitted from defendant's engine, fell upon its right of way and fired combustible and ignitable matter (340) on the right of way, which fire was communicated to the plaintiff's premises, and that the fire was produced as a result of the defendant's negligence. There was no direct evidence as to the origin of the fire. There was conflicting evidence as to the place where, and the time when, the fire broke out. The plaintiff's evidence tended to show that the fire originated on the right of way, and he contends that it came from sparks thrown out by defendant's engine. The defendant's evidence tended to show that on the same day, at a later hour, a pile of cross-ties off the right of way, but near by, was burnt, except the ends of the ties, and it contends that there was the origin of the fire which burned the matter on the right of way and the plaintiff's property. Of course, these contentions and the evidence were submitted to the jury.
During the trial the defendant asked the court to give the following instructions to the jury: "That if the jury shall believe the fire that burned the land of the plaintiff originated in a pile of cross-ties, and that the pile of ties were off the right of way, then the burden of proof is upon the plaintiff to satisfy the jury, by a preponderance of the evidence, that the fire was communicated to the pile of ties by the engine of the defendant; [and even if the jury shall believe that the fire was communicated to the pile of ties by the engine of the defendant, then the plaintiff cannot recover if the engine of defendant was in good order and repair and equipped with an approved spark-arrester for preventing the escape of sparks, and was managed and operated in a careful manner by a skillful and competent engineer, and the evidence on the part of defendant, as to this, is uncontroverted and not contradicted."] His Honor refused to give that part of the prayer embraced within brackets.
"It is admitted by the plaintiff that the engine was in good condition and had a proper spark-arrester and was skillfully operated." With this admission, the question of negligence in having (341) defective machinery is eliminated.
If sparks should escape such an engine as the above, properly handled, and should set on fire combustible matter along the right of way, the defendant would be liable for injuries resulting therefrom, not because the sparks escaped, but for allowing inflammable matter to remain on its premises; but if sparks from such an engine go beyond the defendant's right of way and ignite such matter, over which the defendant has no control, it would not be guilty of negligence in that respect, nor for the escape of the sparks. Or, if the fire originated outside the right of way from some other cause and communicated itself to the right of way and then to the plaintiff's premises, the defendant would not be chargeable with negligence.
The prayer refused embraced an inquiry for the jury, how and where the fire originated, and as it was not substantially given in any part of the charge, we think it was error to refuse it.
The plaintiff's brief says the pile of ties is not referred to in plaintiff's evidence. We do not know what that statement means. In the record we find several witnesses who speak of the burning ties in the edge of the woods outside of the right of way.
From our view, there is no need to examine into other questions made in the record until another hearing below.
NEW TRIAL.
Cited: Ins. Co. v. R. R., 132 N.C. 78; Williams v. R. R., 140 N.C. 625; Bowers v. R. R., 144 N.C. 688; Thomas v. Lumber Co., 153 N.C. 354; Aman v. Lumber Co., 160 N.C. 373; Meares v. Lumber Co., 172 N.C. 294; Moore v. R. R., 173 N.C. 317; Bond v. R. R., 175 N.C. 611; Denny v. R. R., 179 N.C. 535.
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