Caton v. Toler

• Decision Date: 03 October 1912
• Citation: 75 S.E. 929,160 N.C. 104
• Court: North Carolina Supreme Court
• Parties: CATON . v. TOLER.

75 S.E. 929

(160 N.C. 104)

CATON .

v.TOLER.

Supreme Court of North Carolina.

Oct. 3, 1912.

1. Evidence (§ 471^*)—Opinions.

The statement, in an action for fire which broke out on plaintiff's land after some low lightwood stumps in defendant's clearing had been burning and smoldering for 24 hours, of witnesses having personal knowledge of the facts and attendant circumstances, and shown to be qualified by observation and experience, that "smoldering lightwood stumps were not dangerous about sparks, and not likely to carry them any distance, " is admissible as a statement of fact relevant to the issue.

[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 2149-2185; Dec. Dig. § 471.*]

2. Appeal and Error (§§ 206. 237*)—Review—Objection—Unresponsive Answer.

Complaint may not be made of the part of the testimony going beyond the import of the question; there having been no objection to the answer and no motion to strike out the testimony.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 1283-1289, 1386-1388; Dec. Dig. §§ 206, 237.*]

3. Appeal and Error (§ 1050*)—Harmless Error—Evidence.

The effect of the statement of witness, that in his opinion such stumps were not likely to carry fire 44 yards, the distance of the nearest of such stumps on defendant's land from the origin of the fire on plaintiff's land, was nullified by his immediately saying he had seen sparks go that far.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 4153-4160, 4166; Dec. Dig. § 1050.*]

4. Negligence (§ 21*) — Fires—Escape to Property of Another.

Where defendant set fire on land he was clearing, and not to his "woods, " to which latter case only Revisal 1905, § 3346, applies, he is not under absolute obligation to prevent escape of the fire, but is held only to the ordinary care of a reasonable and prudent man under conditions as they existed.

[Ed. Note.—For other cases, see Negligence, Cent. Dig. §§ 28-30; Dec. Dig. § 21.*]

Appeal from Superior Court, Craven County; Whedbee, Judge.

Action by L. B. Caton against Daniel Toler for damages for alleged burning of plaintiff's land and timber by negligence of defendant. From a judgment on a verdict for defendant, plaintiff appeals. Affirmed.

D. L. Ward and D. E. Henderson, both of New Bern, for appellant.

H. C. Whitehurst and R. E. Whitehurst, both of New Bern, for appellee.

HOKE, J. There was evidence tending to show that defendant had been engaged in clearing a new ground, burning it off and preparing the same for cultivation, and the fire complained of broke out on plaintiff's land after some low lightwood stumps in the clearing had been burning and smoldering for 24 hours, and same originated on plaintiff's land as far as 44 yards from the nearest of these stumps.

Objection was made that several wit nesses were allowed to express the opinion that lightwood stumps, under conditions indicated, were not dangerous about sparks, and not likely to throw them any distance. The witnesses had personal knowledge of the facts and attendant circumstances involved in the statement, and were shown to be qualified by observation and experience to give an opinion that would aid the jury to a correct conclusion; and we think the ruling of his honor admitting the testimony-is sustained by several decisions of the court, as in Murdock v. C, C. & O. R. R. Co., 159 N. C. ——, 74 S. E. 887; Lumber Co. v. Railroad, 151 N. C. 217, 65 S. E. 920; Wilkinson v. Dunbar, 149 N. C. 20, 28, 62 S. E. 748; Tire Setter Co. v. Whitehurst, 148 N. C. 446, 62 S. E. 523; McKelvey on Evidence, pp. 230, 231; 1 Elliott, § 675. McKelvey refers to this kind of testimony as follows: "Expert testimony as to facts is nothing more than ordinary testimony as to facts, given by witnesses specially qualified by observation and experience to give it." And again on page 231: "There are two classes of witnesses who are ordinarily spoken of as experts. The one embraces those persons who, by reason of special opportunities for observation, are in a position to judge of the nature and effect of certain matters better than persons who have not had opportunity for like observations. For example, one who has had opportunity to observe the running...