Heath v. Norfolk Southern Railroad

Brogden, J. In cases of damage by fire, occasioned by the engine of a railroad company, there are ordinarily two questions to be determined in order to impose liability upon the defendant. 1. Did the engine set out the fire that burned the property ? 2. If so, did the fire originate through the negligence of the defendant ? The principle of law governing liability for fire catching off the right of way was thus stated in Moore v. R. R., 173 N. C., 311: “It is settled that if the plaintiff has introduced evidence sufficient in probative force to justify a jury in finding that the fire was caused by a spark from defendant’s engine, the issue should have been submitted, the weight of the evidence being a matter for the jury. In such case the defendant is called upon to prove that its engine was properly equipped and operated. If so equipped and operated, there is no negligence or liability upon the part of defendant.” In the case at bar the trial judge, at the request of defendant, charged the jury as follows: “I charge you that under the law of North Carolina, if fire escapes from an engine in proper condition and having a proper spark arrester and operated in a careful way by a careful and competent engineer and the fire catches off the right of way, the defendant is not liable, for there is no negligence, and you should answer the first issue No.’ ” The pertinent question standing at the threshold is whether there was sufficient evidence to be submitted to the jury upon the origin of the fire; that is to say, whether sparks from the defendant’s engine set fire to *544 plaintiff’s property. There was evidence that hot cinders were emitted from defendant’s engine at the time it was shifting near plaintiff’s property, burning a mule of a witness standing near the railroad, and that the witness was compelled to put his coat over his neck for protection. There was evidence that the wind was blowing toward the plaintiff’s property and that large volumes of smoke were coming from the smokestack of the engine. There was further testimony that on the day before, the same engine was throwing sparks which burned the shirt and neck of a witness. There was also evidence that there was no fire about plaintiff’s dwelling or packhouse during the afternoon prior to the time the packhouse was burned. We are of the opinion that there was sufficient evidence to be submitted to the jury on the question of the origin of the fire. Therefore, the motion for nonsuit was properly overruled. Upon the question of negligence, it has been held that if fire was caused by sparks from the engine, that of itself was some evidence of negligence either in the condition of the spark arrester or in the operation of the engine. Reid v. R. R., 180 N. C., 511, 105 S. E., 169. The defendant earnestly insists that the evidence of the witness Cruel to the effect that the engine was throwing sparks the night before the plaintiff’s property was burned, was incompetent. The position of the defendant upon this point would be sound and effective if the record did not disclose that the same engine was involved. A witness for defendant testified: “The engine they claimed the barn was burned by was coming back toward New Bern; that was the same engine that went to Golds-boro the night before.” Another witness for defendant testified: “Engine No. 134 that came down from this direction on the evening of the 5th of March went to Goldsboro, and the same engine came back on the afternoon of the 6th.” The prevailing rule of law with reference to this aspect of the case is thus declared in Kerner v. R. R., 170 N. C., 94, 86 S. E., 998: “It is conceded that where a fatal fire has been set out from a designated or known engine, it is admissible to introduce evidence of other fires previously set out by the same engine for the purpose of showing its defective condition, but the rule has never been extended so as to permit evidence of sparks emitted by some other engine at some other time and place.” No error.