55 S.E. 150 | N.C. | 1906
The plaintiff alleged that he owned a tract of land through which the defendant's railway ran. That defendant permitted its right-of-way to become foul with leaves, brush, and other combustible material, and also used an engine without a proper spark-arrester to its smokestack. The seventh and eighth sections of the complaint read as follows:
"That on or about 4 April, 1904, the said combustible matter then and there being on the defendant's said right-of-way, which said combustible matter the defendant had negligently and carelessly failed to remove, was set on fire by a spark emitted from one of defendant's engines, and the fire thereby started was communicated to the lands of the plaintiffs. That the fire communicated as aforesaid to the lands of the plaintiffs spread through the woods upon the lands and burned over nearly the whole of said land; that the land so burned over amounted to one hundred and thirty acres, to the great damage of the plaintiffs."
The material allegations of the complaint were denied in the answer. The plaintiff introduced testimony to establish the allegations of his complaint, and the defendant's proof tended to show the contrary. *203 The plaintiff's counsel on the cross-examination of defendant's witness, W. J. Angier, asked him the following questions, which were admitted, and the defendant excepted:
"When the steam was shut off and the train was rolling down grade, were not sparks shaken frequently out of the fire-box? (240) Ans.: Yes, but when they fall out of the fire-box they fall into the ash pan.
"When they fall out of the ash-pan where do they fall? Ans.: I do not know."
A witness for the plaintiff, J. W. Adcock, was permitted to testify that sparks could be seen coming from the engine in question every night between 15 February and 15 April, 1904, and that it set the right-of-way "along there" on fire; and another of the plaintiff's witnesses, D. H. Fuquay, testified that he had taken notice of the engine. That in the daytime you could seldom see any sparks or fire, but occasionally you could see fire at night flowing from the smoke-stack and falling from the ash-pan. All of this testimony was duly objected to by the defendant. The defendant did not ask for any special instructions.
The Court thus charged the jury upon the first issue: "The negligence charged in the complaint is that the defendant permitted its right-of-way to become foul by the accumulation of inflammable matter upon it, and that its engine was not equipped with the proper kind of sparkarrester, and that by reason of the condition of the right-of-way and engine a spark was emitted from the engine of defendant, No. 99, and came in contact with the matter on the right-of-way, and in this manner set out the fire that burned plaintiff's woods and land. The plaintiffs, having alleged that defendant negligently burned their property and pointed out in the complaint the negligence charged, before the plaintiffs are entitled to have this issue answered `Yes,' they must satisfy you by the greater weight of evidence that the defendant so negligently burned their property." There was no exception to the charge. The issues, with the answers thereto, were as follows:
"1. Was the plaintiff's property burned by the negligence of the defendant, as alleged in the complaint? Ans.: `Yes.' 2. What damage, if any, are plaintiffs entitled to recover? Ans.: `$600.'"
Judgment was entered upon the verdict, and the defendant (241) appealed.
after stating the case: The contention of the defendant, *204
based upon the testimony of the witness, W. J. Angier, which was admitted by the Court over defendant's objection, is that the plaintiff in his complaint alleges, as the only acts of negligence on the part of the defendant, that the right-of-way was foul and the spark-arrester attached to the smoke-stack was defective, and there being no allegation in regard to the fire-box, any evidence as to a defect in that was irrelevant and prejudicial. It does not appear to us, after a careful reading of the complaint and giving it that liberal construction with a view to substantial justice between the parties which is required by the law (Revisal, sec. 495), that the plaintiff has thus restricted himself to proof only of the defect in the spark-arrester and the bad condition of the right-of-way. It is true, he alleges that the spark-arrester was defective, but in the seventh section of the complaint he states generally that the fire was caused by a spark emitted from the engine, which ignited the combustible material on the right-of-way and thence spread to his standing timber, which was destroyed. But can it make any difference in the legal aspect of the case, whether the spark or live coal came from the smoke-stack or the fire-box, even assuming them to have been in the best condition, if eventually it fell upon the foul right-of-way and produced the conflagration? We think not, because the permitting its right-of-way to remain in a dangerous condition was an act of negligence, sufficient of itself to cause the damage and necessarily proximate to it, if the fire immediately, and without any (242) intervening efficient and independent cause, spread to the plaintiff's woods. Aycock v. R. R.,
If one does an act, lawful with respect to the complaining party, and does it in a proper way, the ensuing loss, if there is any, is not, in the legal sense, an injury, but damnum absque injuria. If the act is unlawful, or is done in an unlawful manner, it is an actionable wrong; and of course if it is done negligently, or, in other words, if in doing it he fails to exercise the foresight of a man of ordinary prudence and by reason thereof does not see that some damage will follow, when otherwise he would have discovered it, the wrongdoer is liable for the damage which proximately results. Drum v. Miller,
The quality or particular character of the act of negligence is immaterial, so that it is sufficient to produce the injury. The Judge, after reciting substantially the allegation of the complaint, charged the jury in this case that before they could bring in a verdict for the plaintiff they must find that the defendant committed the very acts *205 of negligence so set forth by him, that is, that the spark-arrester was defective and the right-of-way foul, and that by reason of the defect in the spark-arrester a spark was emitted from the engine and fell on the right-of-way, where it ignited the inflammable material there lying and caused the destruction of the plaintiffs' property. So that the jury must have found that the spark-arrester was defective and the right-of-way foul, as they gave the plaintiff their verdict.
By the charge the testimony as to the fire-box and ash-pan was virtually taken from the jury. There were two acts of carelessness specified by the plaintiff in one part of his complaint, namely, having a defective spark-arrester and keeping a foul right-of-way; but when he came to allege, in another part, the negligence that caused the injury, he departed from this specific allegation and charged (243) generally that the spark fell from the engine, without describing the particular place from which it was emitted, and that by reason thereof the fire was started on the right-of-way. In no view of the matter is it material to inquire how it happened to fall from the engine, so that it lighted on the right-of-way, which was in bad condition, and caused the fire. Simpson v. R. R.,
The view we have taken is fully supported, we think, by the recent decision of this Court in Williams v. R. R.,
It all comes to this, that whether the spark-arrester or the fire-box was defective or not, if a spark was emitted from the engine and kindled the fire on defendant's right-of-way because it was foul, it is liable to the plaintiff for the loss of his timber caused thereby, and that fact having evidently been found by the jury, all evidence as to the (245) defectiveness of the fire-box or as to live coals dropping therefrom, and even that as to the spark-arrester, was irrelevant and harmless.
The testimony of the witnesses Adcock and Fuquay was clearly competent, and there can be no doubt that it was relevant to the issue being tried. That they had seen the same engine which caused the fire when plaintiff's timber was burned, as it passed and repassed, and that sparks were flowing from the smoke-stack, and that between February and April, as stated by one of the witnesses, "it set fire on the right-of-way" near where the timber stood, must be some evidence bearing upon the *207
actual condition of the engine and showing that it was defective in some way. But the very question has been recently decided by this Court and such evidence held to be relevant. Johnson v. R. R.,
Cited: Clark v. Guano Co.,
(246)