104 S.E. 366 | N.C. | 1920
This action was brought to recover damages for setting fire to plaintiff's lands and the timber thereon, in April, 1916, and burning the same. The fire came from defendant's engine, which was operated on his tramroad. There was evidence tending to show that the fire was set out by defendant's engine, and that it burned plaintiff's property, and that it started at the side of the tramroad and near to it, or at a trestle on the road where there were tree tops, grass, and other dry and combustible material, and that it burned over a large area of land. One witness stated that the engine passed him about one-half mile from where he first saw the smoke rising from the fire; and when he went to the place, it had burned some distance from the trestle. There was further evidence tending to show that defendant's engine was the cause of the fire, but it is not necessary to recite it here in detail. The wind carried the fire from the tramroad to the dirt road, and all land between the two had been burned over, and some of the evidence tended to show that the engine had passed the place shortly before the fire and smoke were first seen. The engine was seen to set out fire a week before this fire in question occurred. This testimony was objected to by defendant, and his objection was overruled by the court, and an exception taken upon the ground that there was no evidence that the engine was in the same condition on the two occasions. The witnesses for plaintiff stated that defendant's right of way had not been burned off, but was very foul.
The defendant's evidence tended to show that the fire was not started on its right of way, or by its engine, but that it originated elsewhere, and also that defendant had not been guilty of any negligence.
The jury returned a verdict for the plaintiff, and assessed his damages at $1,000. Judgment thereon for plaintiff; defendant appealed. after stating the case: We will consider the exceptions in the order of their statement in the record:
The testimony of Martin Hairr and Susan H. Hairr was competent, and was properly admitted. The burden was upon the defendant to show that his engine was provided with a spark arrester, or other *132
appliances, reasonably sufficient to prevent the escape of sparks or live coals from the smokestack, or the fire box, and this is rested upon the ground that the defendant necessarily has, or should have, peculiar knowledge of the facts, and is better informed as to the condition of his engine operated on his tramroad than a plaintiff, who would generally be ignorant of it. This Court, in Aycock v. R. R.,
This case and Knott v. R. R.,
The testimony of K. A. Robinson was properly excluded, because he proposed to speak solely of a statement, not only of a third person, but of a person who had since died, which was made to him. This was hearsay and incompetent, it having none of those safeguards required by the law for the maintenance of truth. The same may be said of the testimony of Charlie Cromartie and T. F. Fowler.
The other exceptions are merely formal.
The court's rulings were correct throughout, and we therefore affirm the judgment.
No error. *134