Balcum v. Johnson

• Decision Date: 19 March 1919
• Docket Number: 225.
• Citation: 98 S.E. 532,177 N.C. 213
• Parties: BALCUM ET UX. v. JOHNSON.
• Court: North Carolina Supreme Court

98 S.E. 532

177 N.C. 213

BALCUM ET UX. v. JOHNSON.

No. 225.

Supreme Court of North Carolina

March 19, 1919

Appeal from Superior Court, Sampson County; O. H. Allen, Judge.

Action by L. L. Balcum and wife against J. D. Johnson. Judgment for plaintiffs, and defendant appeals. No error.

A verdict must be interpreted and allowed significance by proper reference to the testimony and the charge of the court.

Plaintiffs alleging ownership of a designated tract of land, instituted the action to recover damages of defendant for wrongfully setting out fire and burning over the ground by means of a defective engine operated by defendant and his employes over his tramroad, etc.

There was denial of plaintiff's ownership by defendant and of any and all liability in the matter. There was evidence offered by plaintiffs of ownership of land, subject to a life estate therein of one J. A. Balcum, the life tenant not being a party, and also evidence in support of the wrong and damage alleged against defendant. On the part of defendant, there was evidence tending to show that he was in no default by reason of the fire complained of, including testimony to the effect that the fire that caused the damage was in fact and in truth put out by one Tom Wright, who had no relationship with defendant and his work and for whose conduct defendant was in no way responsible. Evidence in reply by plaintiff that the fire complained of and causing the injury was not started by Tom Wright, and that any fire put out by him was in the reasonable effort to check the spread of the fire started by defendant and which, under conditions presented was a neighborhood menace.

On issues submitted, the jury rendered the following verdict:

"1. Are the plaintiffs the owners of the land described in the complaint? A. Yes, except as to the life estate of J. A Balcum.

2. Was the land burned over by the negligence of the defendant, as alleged in the complaint? A. Yes.

3. If so, what damages were done to said land and premises? A $300."

Judgment on the verdict for plaintiffs, and defendant excepted and appealed, assigning errors.

Butler & Herring and H. E. Faison, all of Clinton, for appellant.

Geo. A. Smith, of Charlotte, and Fowler & Crumpler, of Clinton, for appellees.

HOKE J.

Defendant noted an exception to the evidence of two witnesses for plaintiff, Martin Hairr and wife, to the effect that, one week before the fire in question, the engine operated by defendant over his tramroad, in passing the witness, threw out sparks and live coals from which fire caught. In this connection, it was also proved that defendant owned and operated only the one engine over his road, and, under our decisions applicable, the evidence is competent on the issue. Whitehurst v. Lumber Co., 146 N.C. 588, 60 S.E. 648; Knott v. R. R. Co., 142 N.C. 238, 55 S.E. 150. In addition, it appeared from the evidence of Andrew Robinson, defendant's engineer and a witness in his behalf, that the engine in question was in the same condition on the day of the fire that it had been for six months previous to the fire and continued to be for six months thereafter. This, in any event, would render the evidence receivable on the issue. Blevins v. Cotton Mills, 150 N.C. 493, 64 S.E. 428. It was further insisted that his honor erroneously modified certain prayers for instruction by defendant in reference to the conduct of one Tom Wright who was engaged with others in the endeavor to extinguish or check the spread of the fire. The prayers more directly involved, being as follows:

"A. The defendant contends that the fire originated off his right of way and some distance from it, and that he was in no way responsible for this fire, but that from whatever cause originated this fire was held under control and was not permitted to go across the sand-clay road, and was not communicated to the plaintiff's land, and that the fire which burned the lands on the east side of the sandclay road was set out by a third party, viz., one Tom Wright, and this is the fire that eventually burned the plaintiff's land. If this is true, and the jury should so find by the greater weight of the evidence, then the defendant is not liable. Or, if you shall find by the greater weight of the evidence that there was another fire set out by Tom Wright on the east side of the sand-clay road, as contended for by the defendant, and you are then in doubt as to whether the original fire or the fire set out by the third party, Tom Wright, burned the plaintiff's land, in that event, the defendant is not liable, and the plaintiff could not recover."

"B. If the jury shall find from the evidence that the fire originated between the defendant's railroad track and the county sand-clay road, which runs parallel with the railroad track and several hundred yards east therefrom, and that while those assembled endeavoring to control the fire, and while it was a considerable distance from the sand-clay road, which road was about 30 feet wide and free from combustible matter, one Tom Wright, a third party, instead of back-firing along the sand-clay road on the west side of the road and next to the fire, strewed fire on the opposite side of the road, being the eastern side of the road, with the wind blowing in an easterly direction, this would be an act of negligence for which the defendant would not be liable."

His honor, both in his general charge and in direct response, told the jury that the positions embodied in those instructions would prevail in their consideration of the case unless the act of Tom Wright referred to was a reasonable act and precaution to prevent the spread of the fire wrongfully started by defendant. It is the well-recognized doctrine that, in order for the act of an intelligent intervening agent to break the sequence of events and protect the author of a primary negligence from liability, such act must be an independent, superseding cause, one that the author of the primary negligence had no reasonable ground to anticipate, and usually the act must be in itself negligent or at least culpable. In Barrows on Negligence, the position is stated and commented on as follows:

"Where an independent, efficient, wrongful cause intervenes between the original wrongful act and the injury ultimately suffered, the former, and not the latter, is deemed the proximate cause of the injury.

An efficient, intervening cause is a new proximate cause, which breaks the connection with the original cause, and becomes...