Bond v. Carolina, Clinchfield & Ohio Railway Co.

AíleN, J. We have set out the allegations of negligence, the evidence offered to support these allegations, and the charge of the Court, for the purpose of showing that the real controversy between the_ plaintiffs and the defendant was as to the origin of the fire, the plaintiffs contending that sparks fell from the engine of the defendant on combustible matter on its right of way and was thence communicated to the lands [611] of tbe plaintiffs, and tbe defendant contending tbat tbe fire came from an illicit distillery operated off tbe right of way of tbe defendant by parties unknown. There is no allegation of a defective engine or spark arrester, and no suggestion of negligent operation except in tbe third paragraph of tbe complaint where it is alleged tbat tbe defendant ran its trains in a “negligent manner,” without specifying in what tbe negligence consisted, and this is followed in tbe same paragraph by the allegation tbat tbe negligence was in permitting sparks to fall on combustible matter. And when we turn to tbe evidence for tbe defendant it is directed solely to tbe origin of tbe fire. There is no evidence tending to prove tbat there was no combustible matter on tbe right of way of defendant, and nothing to exculpate tbe defendant if tbe fire came from its engine. We are, therefore, constrained to bold tbat tbe only question in controversy on tbe first issue was whether tbe fire which burned over tbe lands of tbe plaintiffs came from tbe engine of tbe defendant or from tbe illicit distillery, and when so considered, tbe charge, if otherwise objectionable in failing to give tbe plaintiffs tbe benefit of tbe presumption arising from proof of tbe origin of tbe fire, as in Currie v. R. R., 156 N. C., 423, is unobjectionable, as tbe jury has found tbe fact against tbe plaintiffs. Again, there being no allegation of a defective engine, tbe burden was on tbe plaintiffs, as bis Honor charged, to establish tbe negligence relied on, tbe accumulation of combustible matter on tbe right of way. Moore v. R. R., 124 N. C., 338; McMullan v. R. R., 126 N. C., 725. Tbe charge as to tbe spark arrester was without evidence to support it, tbe evidence being that tbe fire started on tbe right of way, if it originated from tbe engine of tbe defendant, but of this tbe plaintiff cannot complain, as it gave them tbe benefit of having tbe jury consider in their favor a phase of negligence without allegation or proof, which might impose a liability on tbe defendant. No error.