Foreman-Blades Lumber Co. v. City of Elizabeth City

Schenck, I. The appeal poses two questions, the answers to either of which might be determinative: Whether, supposing the injury to plaintiffs’ lands to have been proximately caused by the negligence of the defendant’s employees, the city is nevertheless immune from liability therefor because its employees were acting in furtherance of its governmental powers; and whether the evidence relating to the origin of the fire raises inferences which should have been submitted to the jury. It is thought that in view of the conclusion we have reached on the latter question, discussion of the former is not an immediate necessity. It has not been possible to set down at length and in much detail all the evidence relating to the fires as the witnesses saw them, including, of course, the brush fires set by the city employees on the northern end of the city property. But the testimony of these witnesses as to the facts observed by each of them leaves much to be desired in the way of direct evidence, still leaves the origin of the fire dependent upon the circumstances they relate. The question, then, is whether these circumstances point so unequivocally to the brush fires set by defendant’s employees as the origin of the fires later seen burning over plaintiffs’ property as to raise inference of probative value rather than conjectural or mere speculative possibility. . Many cases in our reports reflect the difficulty of decision often present in cases of this kind, but they also furnish rational and applicable rules for guidance in similar situations. A collection of these may be found in Moore v. Railroad, 173 N. C., 311, et seq., 92 S. E., 1; and Lewis v. Steamship Co., 132 N. C., 904, 44 S. E., 666. They all come to the same point: When the evidence is “conjectural or speculative” it should not be submitted to the jury. Lewis v. Steamship Co., supra, p. 910. More plainly stated in Cobb v. Fogalnan, 23 N. C., 440, is the rule: “Although the boundary between a defect of evidence and evidence confessedly slight be not easily drawn in practice, yet it cannot be doubted *273 that what raises blit a possibility or conjecture of a fact can never amount to evidence of it.” Since, as we have stated, the facts testified to by the witnesses are such as to compel resort to the circumstances thus brought into the evidence for a more definite conclusion as to the origin of the fire, we might here turn to some of those basic facts upon which plaintiffs must rest. Of all the witnesses who observed the fires in that area, Avery Jones, whose attention was called to the fire by Grant Morris, was nearest in point of time and distance at the critical stage when the relation of the fire to the west and the brush fires on defendant’s lands could be adequately known. He testified that there was at that time a space of 200 yards between the two. We find no evidence that the intervening space was burned over (until the conflagration became general), or that the fire had crept underground in the peaty soil from the brush fires in that short time, or that any unusual atmospheric condition made communication through the air more probable. Accessibility of the premises to the public in the vicinity of the fires observed weakens the attempt to confine its origin to the burning of the brush on the city property as the sole possible cause of the fire. Moore v. Railroad, supra. In Mitchell v. Melts, 220 N. C., 793, 799, 18 S. E. (2d), 406, Justice Winbome, speaking for the Court, laid down the rule which we think is applicable here: “There must be legal evidence of every material fact necessary to support a verdict, and the verdict ‘must be grounded on a reasonable certainty as to probabilities arising from a fair consideration of the evidence, and not a mere guess, or on possibilities.’ 23 C. J., 51; S. v. Johnson, 199 N. C., 429, 154 S. E., 730; Denny v. Snow, 199 N. C., 773, 155 S. E., 874; Shuford v. Scruggs, 201 N. C., 685, 161 S. E., 315; Rountree v. Fountain, 203 N. C., 381, 166 S. E., 329; Allman v. R. R., 203 N. C., 660, 166 S. E., 891; Cummings v. R. R., 217 N. C., 127, 6 S. E. (2d), 837; Mercer v. Powell, 218 N. C., 642, 12 S. E. (2d), 227; Mills v. Moore, 219 N. C., 25, 12 S. E. (2d), 661.” Upon these considerations we feel compelled to hold that the court below was in error in declining to sustain the defendant’s demurrer to the evidence, and motion for judgment as of nonsuit. The judgment is. therefore, reversed. Foreman-Blades Lumber Co. et al. v. City of Elizabeth City, Reversed. G. H. Winslow v. City of Elizabeth City, Reversed.