84 S.E. 851 | N.C. | 1915
In actions against railroad companies to recover damages caused by fire the plaintiff makes out a prima facie case which entitles him to have the issue of negligence submitted to the jury upon offering evidence tending to prove that the fire which caused him damage originated from the engine of the defendant (Hardy v. Lumber Co.,
We have no power to pass upon the weight of the evidence nor to determine whether it is sufficient to satisfy the jury, our duty being confined to the single inquiry as to whether there is any evidence which a jury ought to consider, giving the evidence the interpretation most favorable to the plaintiff, as we are required to do upon judgments of nonsuit.
Negligence may be proven by circumstantial evidence, and while it must do more than raise a possibility or conjecture, the plaintiff is entitled to have it submitted to the jury if, after a fair consideration of it, the more reasonable probability is in favor of the plaintiff's contention.Henderson v. R. R.,
In Fitzgerald v. R. R.,
Applying this rule, we are of opinion there was some evidence as to the origin of the fire, which ought to have been submitted to the jury.
The fire occurred on 6 May, 1911, and there is evidence that the train passed the place where it was first seen at 10:45 a. m.; that the fire was not seen until 2 o'clock; that there was combustible matter on the right of way of the defendant; that the fire was where the railroad crosses the swamp; that when the witness who first went to the fire reached it the fire had burned up the swamp two or three hundred yards; that it burned slowly in the swamp and finally passed through it and onto the land of the plaintiff; that the wind was blowing from the railroad towards the plaintiff's land; that the fire had burned on the right of way of the defendant and then continuously to the plaintiff's land; that the fire widened as it passed from the right of way, and one witness stated, without objection, "that the fire looked like it started on the right of way," and another witness "that it widened after it left the railroad track something like 20 yards wide, burning on the right of way; that is, when it left the right of way the wind carried it directly away from the railroad." There was no evidence of any other fire near the place of the burning on that day, and the only reference to any other fire except that in the engine of the defendant was as to a small fire in a part of the woods five or six days before. *660
(573) From these circumstances the inference may be drawn that the engine of the defendant set out the fire, and although the fact that the fire was not discovered for more than three hours after the engine passed weakens the force of evidence, it is not of sufficient import to justify withdrawing it from the jury.
In Caton v. Toler,
We refrain from discussing the evidence further, as the case is to be tried before a jury, and an argument in support of the position that there is some evidence might be understood as an expression of opinion as to its weight.
New trial.
Cited: Moore v. R. R.,