McKay v. Atlantic Coast Line Railroad

Hoke, J., after stating the case: There was evidence tending to show that intestate lived alone in a cabin on a wooded tract of land in which there was a small clearing or two, and that on 20 March, 1910, said to be Wednesday, a fire, originating on defendant’s right of way, and negligently started from one of the company’s trains, burned over the intervening lands towards the intestate’s property and partly over her own land. That it proved to be an extensive fire, and several of the neighbors at different places were engaged in trying to extinguish it. One of them heard the intestate cry out on Thursday morning, but was unable to go to her because engaged in endeavoring to save his own property. That on Friday or Saturday morning the dead body of the intestate was found on a path about the dividing line where the fire was approaching her own from Colonel Broadfoot’s adjoining tract. That all the clothing was burned off except the shoes, and a pine top lying near, half beaten or worn out, and her tracks along the path and some burning shreds of her clothing along the edge of the fire gave indication that she had caught fire while engaged in the effort to *262 beat back the fire and prevent it from making further progress towards her land and dwelling. On these the facts chiefly relevant to the second issue, we think there was error in the ruling of the court. While our decisions would seem to make some distinction between the risks allowable when human life is at stake and those when the destruction of property is presently threatened, all of the authorities, here and elsewhere, are to the effect that it is both the right and duty of an owner to make every reasonable endeavor to save his property from destruction, and that .in passing upon his conduct full allowance shall be made for the natural impulse prompting the effort and for the emergency under which he acts. Norris v. R. R., 152 N. C., 515; Burrett v. R. R., 132 N. C., 261; Rexter v. Starin, 70 N. Y., 601; 29 Cyc., p. 524. Pegram v. R. R., 139 N. C., 303, cited and to some extent relied upon by defendant, does not contravene, but is in full recognition of the general principle as stated, the case only deciding on this question that “where an employee who had escaped from a burning building and was in a place of safety voluntarily returned to same in an effort to recover his employer’s property, an instruction that imposed only one limitation upon his right to recover, that, he must not act recklessly, was erroneous.” Applying the controlling position as sustained by the authorities cited, the court below was clearly not justified in holding as a matter of. law that the intestate was guilty of contributory negligence, the facts in evidence tending as they do to prove that she was burned in the effort to beat back a fire which threatened her property and even her home. And to show that this last apprehension was not groundless, it further appears that the same fire, though delayed for a time probably by a small, clearing which intervened, did subsequently reach her yard, and the dwelling was only saved by the efforts of her neighbors. For the error indicated plaintiff is entitled to a new trial, and it is so ordered. New trial.