Meares v. Wynnewood Lumber Co.

Walker, J., after stating the case: There was ample evidence in this case to the effect that the defendant’s engine was improperly or defectively constructed with reference to its smokestack and fire box; that it was carelessly operated, and, lastly, that its right of way was very foul, being rank with combustible material; and also evidence that fire was set out by the engine which proximately caused the destruction and loss of plaintiff’s timber. It is not necessary that the origin of the fire should be established by positive or direct testimony; that, for instance, of an eye-witness, who testifies that he was present and saw how it originated; but it may be shown by circumstantial proof, like any other material fact in issue. McRainey v. R. R., 160 N. C., 570; Thompson v. R. R., 72 W. Va., 555. This case, in every phase of it, except the questions of evidence, which we will notice later, falls within the principle as stated in Knott v. R. R., 142 N. C., 238; Williams v. R. R., 140 N. C., 623; Whitehurst v. R. R., 146 N. C., 591; Cox v. R. R., 149 N. C., 118; Currie v. R. R., 156 N. C., 419; Aman v. Lumber Co., 160 N. C., 360; and there are others of the same kind. In Aman’s case, supra, we adopted the analysis of the law made in the Williams case, supra, as follows: *294 “1. If fire escapes from an engine in proper condition, having a proper spark arrester and operated in a careful way by a skillful and competent engineer, and tbe fire catches off the right of way, the defendant is not liable, for there is no negligence. “2. If fire escapes from an engine in proper condition, with a proper spark arrester, and operated in a careful way by a skillful and competent engineer, but the fire catches on the right of way, which is in a foul and dangerous condition, and thence spreads to the plaintiff’s premises, the defendant is liable. Moore v. R. R., 124 N. C., 341; Phillips v. R. R., 138 N. C., 12. “3. If fire escapes from a defective engine, or defective spark ar-rester, or from a good engine not operated in a careful way or not by a skillful engineer, whether the fire catches off or on the right of way, and causes damage, the defendant is liable. Williams v. R. R., 140 N. C., 623.” • A railway company may be supplied with the best engines and the most approved apparatus for preventing the emission of sparks, and operated by the most skillful engineers. It may do all that skill and ácience can suggest in the management of its locomotives, and still it may be guilty of gross negligence in allowing the accumulation of dangerous combustible matter along its track, easily to be ignited by its furnaces, and thence communicated to the property of adjacent proprietors. Conceding that a railroad company is relieved of all re-sjmnsibility for fires unavoidably caused by its locomotives, it does not follow that it is exempt from liability for such as are the result of its negligence or mismanagement. The removal of inflammable matter from the line of the railroad track is quite as much a means of preventing fire from spreading to adjoining lands as the employment of the most improved and best constructed machinery. Knott v. R. R., supra; R. R. v. Medley, 75 Va., 499. This statement of the law was taken from Medley’s .case and adopted by us in Knott’s case. The witness W. 0. Burney ^testified that the fire broke out just after the train had passed, or, to use his expression, “the train-engine was no more than out of sight when the fire got out about 50 yards from the machine on the track.” W. B. Hobbs, who was working about 200 yards away, testified that he heard a roaring about ten minutes after the train passed and saw the smoke; that he went to where the fire was, and found it in dead tree-tops, “which were right by the side of the track — not over 10 feet distant.” B. M. Meares, Jr., testified that “he had seen it put out fire one day, was looking at it, when they had the fireman on the loader throw a bucket of water on it, and watch it. Fire came from the bottom of it, and started between the tracks. This was *295 where there was a strip of woods that had not been burned, and they would keep the fire extinguished until they got to the place where it' had been burned off.” This evidence alone made the question of negligence one for the jury, and makes out a much stronger case of negligence than did the proof in Deppe v. R. R., 152 N. C., 79, or McRainey v. R. R., supra, which cites Hardy v. R. R., 160 N. C., 116; Henderson v. R. R., 159 N. C., 583; Fitzgerald v. R. R., 141 N. C., 535, upon the sufficiency of circumstantial evidence to prove the fact of negligence in dropping live coals or cinders from the defendant’s passing train. It appeared in that case that the 'train had passed by the place, where the burning occurred, more than two hours before the fire was discovered. When the witness .spoke of the roaring which he heard at a distance ten minutes after the train had passed, and which came from the direction where he afterwards saw the fire, he evidently referred to the “roaring” noise which so large a fire makes when driven by a high wind. Upon a motion of this kind we must view the evidence in the light most favorable to the plaintiff, and, thus considered, we are of the opinion that it was sufficient to warrant the jury in drawing from it an inference of negligence. Armfield v. R. R., 162 N. C., 24. The objections to testimony were not well taken. As to the evidence of' B. M. Meares, Jr., the objection should have been to the answer, for the question was unobjectionable in form, as the witness could state whether he saw sparks coming from the engine. But we think the answer was also competent. If the engine, by emitting sparks, had caused a fire, it tended to show, not so much that it kindled this particular fire, as that it was in some way defective. Knott v. R. R., supra; Whitehurst v. R. R., supra. The case of Cheek v. Lumber Co., 134 N. C., 225, and Ice Co. v. R. R., 126 N. C., 797, do not militate against this position. The latter case rather tends to sustain it. It comes within the rules adopted there as regulating the admissibility of such evidence, and taken from the opinion of the Court in Henderson v. R. R., 144 Pa. St., 461. The engine was fully identified in this case, and it would seem from the evidence that there was but one on this logging road. The questions asked the defendant’s witnesses to which exceptions were taken were intended to impeach them and to discredit their statements as to the nonliability of the defendant for burning the plaintiff’s woods. As such, they were competent. Many questions, and answers which are incompetent as substantive testimony, may, nevertheless, be admissible for the purpose of contradicting or impeaching a witness, and sometimes are very relevant for that purpose, or to show the bias *296 of tbe witness, and that bis testimony bas been warped by it. Lockbart on Evidence, see. 280. There is no error in tbe case disclosed by tbe record. No error.