49 S.E. 348 | N.C. | 1904
In this action for damages for destruction (473) of the plaintiff's store alleged to have been set on fire by sparks from the defendant's engine, the Court charged the jury that it was "the duty of railroad companies to equip their engines with the best approved devices and appliance for arresting sparks," * * * and that failure to do so was negligence, making the defendant liable for damages if the jury should find that the plaintiff's house was set on fire by sparks from the defendant's engine. The defendant excepted.
There is error. In Witsell v. R. R.,
The learned counsel for the plaintiff contends that the defendant's witness testified that the engine had the best approved spark-arrester and no witness testified to the contrary, hence as the charge must be read in connection with the evidence, the error being as to a matter not in controversy, was harmless, and that the real point in this part of the charge was as to the continued keeping of the spark-arrester in good condition — as to which the Court charged correctly — and not as to the nature of the spark-arrester, which was not denied to be the "best approved." But Mr. Allen of counsel for the defendant pointed out that while no witness directly testified to the contrary, it was not admitted that it was a proper spark-arrester, the plaintiff's evidence of a shower of large sparks coming from the engine, if believed, tended to question the defendant's evidence of the spark-arrester being the "best approved" pattern, fully as much as it tended to controvert the evidence of its being kept in order.
Error.
Cited: Stewart v. R. R.,
(475)