Kemp v. Norfolk Southern Railroad

AlleN, J. The authorities, beginning with Ellis v. R. R., 24 N. C., 138, and running through a long line of cases which are cited in Currie v. R. R., 156 N. C., 422; Kornegay v. R. R., 154 N. C., 389, and Hardy v. Lumber Co., 160 N. C., 116, fully establish the proposition that where it is shown that the railroad company has set out fire which causes damage to another, that there arises a presumption of negligence, nothing else appearing. This principle has, however, no application here, because there is no evidence that the defendant set out the fire which was finally communicated to the property of the plaintiff. It was admitted by the plaintiff upon the trial in the Superior Court that he could not prove the origin of the fire, and there is no evidence in the record that any engine of the defendant ever passed the point where the fire originated, unless it may be inferred from the circumstances that the defendant was maintaining a depot building and a railroad track. The plaintiff must, therefore, recover, if at all, upon the theory that although the fire was accidental, it was negligence on the part of *733 tbe defendant to permit cordwood to remain on its right of way, and that tbe communication of tbe fire from tbe wood to bis property was tbe cause of bis damage. Tbe wood was ordinary seasoned pine and was piled in tbe usual way. It bad been delivered for shipment and was left on tbe right of way until cars could be procured. Tbe defendant was compelled to receive tbe wood when tendered, under a penalty for refusing to do so (Eev., sec. 2631; Currie v. R. R., 135 N. C., 535), and as it was impracticable to store it in its warehouse, it could only place it on its right of way. If it bad gone out of tbe right of way without permission it would have been a trespasser. We have, then, a ease in which there is no evidence that tbe defendant set out tbe fire, and tbe only negligence relied on is permitting wood to-remain on tbe right of way, and as wood is a recognized and necessary commodity, with no extra hazards in its transportation or shipment, and as tbe defendant was compelled to receive it and could only store it on its right of way, in tbe absence of evidence that tbe wood was placed at an improper place or improperly piled, we must bold there is no-evidence of negligence. As tbe fire originated accidentally, there is no-difference in principle between this and tbe ease of tbe private citizen who buys bis winter’s wood and stores it on bis lot near bis neighbor’s bouse. Tbe case of Insurance Co. v. R. R., 132 N. C., 78, is easily distinguishable from this in that there was evidence in that case that the-defendant set out tbe fire and that it permitted cotton to remain on its platform near its track with the bagging off and tbe upper end of tbe bales with tbe lint bulged out and exposed to fire from tbe passing engines. We are of opinion that judgment of nonsuit was properly entered. Affirmed.