Bertie Cotton Oil Co. v. Atlantic Coast Line R. Co.

• Decision Date: 01 March 1922
• Docket Number: 98.
• Citation: 110 S.E. 660,183 N.C. 95
• Parties: BERTIE COTTON OIL CO. ET AL. v. ATLANTIC COAST LINE R. CO. ET AL.
• Court: North Carolina Supreme Court

110 S.E. 660

183 N.C. 95

BERTIE COTTON OIL CO. ET AL. v. ATLANTIC COAST LINE R. CO. ET AL.

No. 98.

Supreme Court of North Carolina

March 1, 1922

Appeal from Superior Court, Bertie County; Calvert, Judge.

Action by the Bertie Cotton Oil Company and others against the Atlantic Coast Line Railroad Company and others. Judgment for plaintiffs, and defendants appeal. New trial.

Civil action to recover damages for the negligent burning of plaintiff's seedhouse and contents. Certain insurance companies who claimed to be subrogated to the rights of the insured were made coplaintiffs. The jury found that the property of the Bertie Cotton Oil Company had been burned by the negligence of the defendant, and assessed damages.

Where plaintiffs proved that property had been destroyed by fire escaping from railroad's locomotive, they made a prima facie case of negligence for consideration of the jury; but such proof did not impose upon the defendant the burden of rebutting the prima facie case by a preponderance of the evidence, the prima facie case, standing alone, warranting but not compelling, the inference of negligence.

F. S Spruill, of Rocky Mount, and Gillam & Davenport, of Windsor for appellants.

James S. Manning, of Raleigh, and Winston & Matthews, of Windsor for appellees.

ADAMS J.

The defendant excepted to the following paragraph in his honor's instructions to the jury:

"As to the burden of proof on the first question, as to how the fire started, the burden is on the plaintiff to satisfy the jury from the evidence, and by its greater weight, that the property was set on fire by live sparks from the locomotive; if the jury should not so find, then you will answer the first issue No; but if you do so find that, if the property was set on fire by live sparks from the locomotive, then the burden of proof shifts to the defendant to satisfy you by the evidence, and by its greater weight, that it used a competent and skillful engineer and that the condition of the spark arrester was good, and if you so find you will answer this issue No; otherwise, Yes."

There are several decisions of this court in which similar instructions have been approved.

These are represented by Grant v. R. R., 108 N.C. 467, 13 S.E. 209, and Denny v. R. R., 179 N.C. 533, 103 S.E. 24. There are numerous decisions in which the instruction has been disapproved. These are represented by Williams v. R. R., 130 N.C. 128, 40 S.E. 979; Shepard v. Tel. Co., 143 N.C. 245, 55 S.E. 704, 118 Am. St. Rep. 796; Stewart v. Carpet Co., 138 N.C. 66, 50 S.E. 562; Winslow v. Hardwood Co., 147 N.C. 276, 60 S.E. 1130; Overcash v. Electric Co., 144 N.C. 577, 57 S.E. 377, 12 Ann. Cas. 1040. The decisions are conflicting.

When the plaintiffs proved that the property had been destroyed by fire escaping from the defendant's locomotive, they made a prima facie case of negligence for the consideration of the jury; or, as Mr. Justice Pitney says, such proof furnished circumstantial evidence of negligence; but it did not impose upon the defendant the burdren of rebutting the prima facie case by the preponderance of the evidence. Sweeney v. Erving, 228 U.S. 233, 33 S.Ct. 416, 57 L.Ed. 815, Ann. Cas. 1914D, 905. The principle upon which this proposition rests has been stated as follows:

"The burden of the issue, that is, the burden of proof in the sense of proving or establishing the issue or case of the party upon whom such burden rests, as distinguished from the burden or duty of going forward and producing evidence, never shifts, but the burden or duty of proceeding or going forward often does shift from one par

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