Deppe v. Atlantic Coast Line R. Co.

• Decision Date: 09 March 1910
• Citation: 67 S.E. 262,152 N.C. 79
• Parties: DEPPE v. ATLANTIC COAST LINE R. CO.
• Court: North Carolina Supreme Court

67 S.E. 262

152 N.C. 79

DEPPE v. ATLANTIC COAST LINE R. CO.

Supreme Court of North Carolina

March 9, 1910

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

Action by N. R. Deppe against the Atlantic Coast Line Railroad Company. From a judgment for defendant, plaintiff appeals. Reversed.

Whether a fire was set by a locomotive held for the jury.

D. L Ward and D. E. Henderson, for appellant.

Moore & Dunn, for appellee.

MANNING J.

This case being presented to us upon motion for judgment, under the statute, made by the defendant at the conclusion of plaintiff's evidence, the rule established by this court for the consideration of the evidence, is thus stated "The evidence must be construed in the view most favorable to the plaintiff, and every fact which it tends to prove and which is an essential ingredient of the cause of action must be established, as the jury, if the case had been submitted to them, might have found those facts from the testimony." Cotton v. Railroad, 149 N.C. 227 62 S.E. 1093; Brittain v. Westhall, 135 N.C. 492, 47 S.E. 616; Freeman v. Brown, 151 N.C. 111, 65 S.E. 743. The plaintiff sues to recover damages for the negligent destruction by fire of two dry kilns, a large lot of lumber, and a sawmill plant and appurtenances, located at Deppe, in Onslow county, and near a track of the defendant. The fire occurred on the morning of August 15, 1908. A freight train operated by the defendant stopped on that morning at Deppe, and the engine was for 15 or 20 minutes shifting cars backwards and forwards on the side track running to plaintiff's plant. The kilns were built near the side track--60 feet from it. They lay lengthwise along the track, and in the green end of the kiln--i. e., the end through which the trucks full of lumber are run into the kiln, at the top--there was a ventilator 4 or 4 1/2 by 8 feet, opening back about 6 or 7 feet high. The kilns were each about 20 feet wide, and were used for drying out lumber. They were heated by steam conducted in iron pipes from a boiler 156 feet away. The pipes, after reaching the kilns, were laid on iron pipes in the bottom of the kilns, and the ventilators were used for the discharge of the hot air moistened by the water from the lumber. The kilns were tightly built, and no fire was in or about them. From the iron pipes to the place where the fire was discovered in the top of the kilns was 12 to 14 feet. When the fire was discovered near the top of the kiln and near the ventilator, between the ceiling and the roof, no fire was discovered around the pipes or nearer them than the ventilator. The ventilators were open. The wind was blowing from the railroad track towards the kilns, and they were enveloped in the black smoke of the shifting engine while there. The boiler, which furnished the steam heat to the kiln, was 156 feet away from the kiln, and the wind was blowing its smoke and cinders from its smokestack away from the kilns. Only one of the two kilns was heated the morning of the fire. The mill was idle and no fire in its boiler. It was in evidence that it was impossible for the fire occurring in the part of the kiln where it was when first seen to have been caused by the steam-heated pipes. The time between the departure of the defendant's train and the breaking out of the fire was estimated by the witnesses to have been from three-fourths of an hour to an hour and three-fourths. Some of them described it as a short time. The witnesses explained in detail the construction of the kilns, the location in them of the steam pipes, and a map of the premises was used, showing the relative location and distances of the sawmill, lumber sheds, kilns, boiler, and railroad tracks.

The first question, therefore, presented is: "Was the defendant's engine the origin of the fire?" Does the evidence, construed in the view most favorable to the plaintiff, tend to prove this primal fact? The defendant contends that no witness testified that he saw sparks emitted by the engine, or that he saw the sparks from the defendant's engine ignite the plaintiff's lumber kiln. In considering this contention, it must be remembered that this fire occurred in the daytime--in the brilliancy of a summer sun--rendering sparks emitted by an engine incapable of being seen by the human eye. That no one saw the sparks ignite the burned property was...