Kornegay v. Atlantic Coast Line Railroad
70 S.E. 731
N.C.
1911
Check Treatment
Walker, J.,

after stating the case: The defendant’s motion for a nonsuit was properly overruled. There was sufficient evidence tending to show that the fire was caused by sparks emitted from .the defendant’s engine. The plaintiff’s own testimony, and there was more of the same kind, warranted the jury in finding, as a fact, that the house was set on fire in that way. If we construe the evidence in the most favorable light for the plaintiff, giving him the benefit of all legitimate and reasonable inferences to be drawn therefrom, as we are required to do (Cotton v. R. R., 149 N. C., 227; Freeman v. Brown, 151 N. C., 111), the evidence is quite as strong as that which was held sufficient in Deppe v. R. R., 152 N. C., 80, a case much like this one in its facts and circumstances.

When it is shown that the fire originated from sparks which came from the defendant’s engine, the plaintiff made out a prima facie case, entitling him to have the issue as to negligence submitted to the jury, and they were justified in finding negligence unless they were satisfied, upon all the'evidence in the case, that, in fact, there was no negligence, but that the defendant’s engine was equipped with a proper spark arrester and had been operated in a careful or prudent manner. Williams v. R. R., 140 N. C., 623; Cox v. R. R., 149 N. C., 117.

The charge of the court, when properly considered as a whole, was in accordance with the principles settled in the cases just cited. ¥e are not permitted to select detached portions of the charge, even if in themselves subject to criticism, and assign errors as to them, when, if considered with the other portions of the charge, they are readily explained and the charge in its entirety appears to be correct. Each portion of the charge must be construed with reference to what precedes *393 and follows it. Tbis rule is so plainly fair and just, both to tbe judge and tbe parties, as to have commended itself to tbe courts, and it is tbe only reasonable one to adopt. S. v. Exum, 138 N. C., 599; S. v. Lewis (at this term). In S. v. Exum, supra, Justice Hoke, approving tbe statement of tbe rule to be found in Thompson on Trials, sec. 2407, says: “It (the charge) is to be considered as a whole in tbe same connected way in which it was given, and upon tbe presumption that tbe jury did not overlook any portion of it. If, when so construed, it presents tbe law fairly and correctly to tbe jury, it will afford no ground for reversing tbe judgment, though some of tbe expressions, when standing alone, might be regarded as erroneous.” Apply tbis rule to tbe charge of tbe court, and we think it will be gathered therefrom that bis Honor substantially told the jury that if tbe bouse caught fire from sparks which were emitted from tbe defendant’s engine, it made out a prima facie case of negligence; but they would not find against tbe defendant upon tbe issue if they concluded, after consideration of all tbe proof, that tbe defendant’s engine bad a spark arrester — not tbe best, but of approved make and in general use — and that tbe train was carefully bandied, so that there was no negligence on tbe defendant’s part. Tbe court did not say that tbe mere emission of sparks, even if they started tbe conflagration, would establish tbe liability of tbe defendant for tbe consequent damage, but the careless emission of sparks, whether they proceeded from a defective spark arrester or from tbe unskillful or negligent operation of tbe engine. Deppe v. R. R., 152 N. C., at page 83.

Tbe plaintiff testified that be and bis wife were sitting on tbe piazza of bis bouse when tbe train passed. He was describing tbe piazza, when tbe court inquired: “You bad a pretty big piazza, didn’t you?” No objection was made to tbe remark at tbe time, but defendant afterwards assigned it as error. Tbe plaintiff contends that if tbe remark was injurious to tbe defendant, tbe objection came too late, and cites Alley v. Howell, 141 N. C., 113; S. v. Tyson, 133 N. C., 692; but we need not consider tbis contention, as we are of tbe opinion that the *394 inquiry, if not proper, was harmless. It was not relevant to tire controversy in any way. What could the size or dimensions of the porch have to do with' the negligence of the defendant or the question being tried ? It was not prejudicial in any view that we can take of the case. The defendant’s counsel asked a witness where the engineer was when he last heard from him, and the question was excluded. It does not' appear that any effort had been made to procure the attendance of the engineer as a witness, by issuing a subpoena for him or by taking his deposition. The inquiry as to his whereabouts was, therefore, irrelevant. For all that appears, the defendant could easily have had the benefit of the engineer’s testimony if wanted. It was not proposed to show that he was dead, or that the defendant could not reach him with process or take his deposition. If that was the object, it should have been disclosed to the court, as otherwise it could not be material where he was.

We find no error in the case.

No error.