Dickerson v. Norfolk-Southern R. Co.

• Decision Date: 21 October 1925
• Docket Number: 155.
• Parties: DICKERSON ET AL. v. NORFOLK-SOUTHERN R. CO. ET AL. HOME INS. CO. ET AL. v. NORFOLK-SOUTHERN R. CO. ET AL.
• Court: North Carolina Supreme Court

129 S.E. 810

190 N.C. 292

DICKERSON ET AL. v. NORFOLK-SOUTHERN R. CO. ET AL.

HOME INS. CO. ET AL. v. NORFOLK-SOUTHERN R. CO. ET AL.

No. 155.

Supreme Court of North Carolina

October 21, 1925

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

Consolidated actions, the first by N. F. Dickerson and others against the Norfolk-Southern Railroad Company and another, and the second by the Home Insurance Company and others against the same defendants. Judgment of nonsuit, and plaintiffs appeal. Affirmed.

Stacy C.J., dissenting.

Nonsuit held proper on evidence as to fire.

Certain actions pending in the superior court of Craven county against Norfolk-Southern Railroad Company and James K Daugherty, instituted by N. F. Dickerson and others, owners of a packhouse and a large quantity of tobacco stored therein, destroyed by fire on November 3, 1920, and by certain insurance companies, which had paid to the owners of said property sums of monney due under policies of insurance issued by them, were consolidated for trial. It was alleged in the complaints in said actions that the fire which destroyed said packhouse and tobacco was set out by the negligence of defendants. This allegation was denied in answers filed by defendants. At the close of all the evidence, motion for judgment as of nonsuit was allowed. Plaintiffs excepted. From judgment in accordance with said motion, plaintiffs appealed. The only assignment of error upon appeal is based upon the exception of plaintiffs to the judgment of nonsuit.

Manning & Manning, of Raleigh, and Ward & Ward, E. M. Green, and D L. Ward, all of Newbern, for appellants.

Moore & Dunn, of Newbern, for appellees.

CONNOR J.

A packhouse owned by N. F. Dickerson, in which was stored a large quantity of tobacco, owned by Dickerson and his tenants, was destroyed by fire on November 3, 1920. Certain insurance companies, which had issued policies of insurance on said property, paid to Dickerson and his tenants the amounts for which they were severally liable under said policies by reason of the destruction of said property by fire.

On June 2, 1923, Dickerson and his tenants commenced an action against defendants for the recovery of damages sustained by them because of the destruction of said packhouse and tobacco. They allege that the property destroyed was of the value of about $30,000; that they received from insurance companies, on account of said loss, about $11,000 in settlement of the amounts due on policies covering said property; they demand judgment against defendants for the difference between the value of the property destroyed and the amount received by them from the insurance companies.

The insurance companies thereafter commenced actions against defendants, in which they allege that prior to November 3 1920, they had severally issued policies of insurance to N. F. Dickerson and his tenants, insuring them against all direct loss by fire, said policies covering the packhouse and tobacco stored therein; that by reason of the destruction of said property by fire on November 3, 1920, they became severally liable to the owners of said property in various amounts, which they have paid; that by the provisions of their several policies they have become subrogated to the rights of the owners of said property to recover damages from the person or persons who are liable for the same to the extent of the amounts severally paid by them. They demand judgment against defendants for the amounts severally paid by them to N. F. Dickerson and his tenants.

Plaintiffs, in their several complaints, allege that on November 3, 1920, defendant, Norfolk-Southern Railroad Company, by and through its engineer, James K. Daugherty, was operating an engine and log cars on the spur track running from its main track near the said packhouse to Munger & Bennett's mill, on Trent river, at James City; that while so operating said engine and cars, defendants negligently permitted said engine to emit sparks and coals of fire therefrom which fell upon and set fire to said packhouse and tobacco, causing the complete destruction of same; that defendants so operated said engine without a spark arrester, or with a defective spark arrester; that the engineer was negligent and incompetent, and operated the engine in a negligent manner.

Defendants, in their answers, denied all allegations of negligence.

The evidence offered by plaintiffs with respect to the origin of the fire which destroyed the packhouse and its contents, was as follows:

F. A. Fulcher testified that he is a surveyor, and that at the request of plaintiff N. F. Dickerson, during October, 1924, he made a survey of the Norfolk-Southern switch track extending from its main track to Munger & Bennett's mill; that Mr. Dickerson showed him the location of the packhouse which was burned November 3, 1920; the distance from the nearest point of the location of the packhouse, as shown him by Mr. Dickerson, to the switch track was 81 feet; at this point the packhouse was north of the switch track; this track was in a curve all the way from the main track to the mill yard. It was located not far from the public road. There were other houses located in there along the public road. The houses on the east side of the road are negro shacks. Munger & Bennett's mill is located near the river, about a quarter of a mile to the north of where the packhouse was located; in addition to their mill, they have and operate, a planing mill. In both mills there are a number of boilers and smoke stacks.

N. F. Dickerson testified that on the afternoon of November 3, 1920, the wind was blowing about northeast; that he saw the engine of defendant shifting on the switch track, passing the packhouse, from Munger & Bennett's mill to the Clark Lumber Company's plant; black smoke, coming from the engine, was blown across the packhouse; the train switched in there for from a half to three-quarters of an hour. Witness saw the engine shifting between 4 and 4:30 p. m.; he saw only one train on the switch track that afternoon; he was at work during the afternoon about 250 feet from the packhouse; he left the farm some time before dark, between a quarter to and a quarter past 5 o'clock. The last place witness was in before leaving the farm was the packhouse yard. There was no fire in or about the packhouse during the day. Witness first heard of the fire when some one called him on the phone at his home in Newbern; he went at once, by automobile, to the packhouse; when he got there, the fire was burning on the roof. There was no fire below. The packhouse and tobacco were completely destroyed.

There was no arrangement of any kind in the packhouse for fire. There was no chimney, fireplaces, or flues. The packhouse had a shingle roof. It was located about 50 or 60 feet from the public road leading into New Bern.

Mrs. Sadie Dickerson, sister-in-law of N. F. Dickerson, testified that she lived in James City, a settlement across the river from New Bern, not very far from the packhouse; she saw the fire about 6 o'clock, after her family had had supper. It was then burning on top, about middle way, very rapidly. She saw the Norfolk-Southern shifter that afternoon on the switch track between a quarter to 5 and 5 o'clock. The smoke from the shifter was going toward the packhouse. The side of the roof next to the track was burning when she first saw the fire.

K. L. Dickerson, husband of Mrs. Sadie Dickerson, testified that he had not been on the farm where the packhouse was located that day. He got home about 5:30 or a quarter to 6. His wife called him when she saw the fire, about 6 or a quarter past 6 o'clock. He went at once to the fire, and found the roof of the packhouse burning on top next to the railroad. The wind was blowing from the northwest. It was burning a pretty good blaze when he got there.

J. T. Cherry, one of the tenants who had tobacco in the packhouse, testified that he went to the farm on which the packhouse was located at about 8 a. m. on November 3, 1920; that he took tobacco out of the packhouse about 12 o'clock to the grading shed; that he remained on the farm until a little before sundown. There was no fire there when he left. Witness saw the train on the switch track during the afternoon, and observed heavy, black, smoke coming from the engine and passing over the packhouse. He knew nothing of the fire until next morning.

W. T. Messic, another tenant who had tobacco in the packhouse, testified that he was eating supper between 5:30 and 6 o'clock when he first discovered the fire. He lived about 300 yards from the packhouse. The fire was on the side next to the railroad. Witness saw the shifter on the switch track that afternoon, about 4 o'clock. A lot of black smoke was coming from the engine and going in the direction of the packhouse. He went to the fire. It was burning pretty rapidly when he got there. If the roof had been on fire when he left to go to supper, he would have seen it. He looked at the packhouse after the engine passed it. He had been home long enough to eat supper before the alarm of fire was given.

Albert Spivey testified that he lived in James City on November 3, 1920, the day of the fire; that he saw the shifter in the mill yard of Munger & Bennett between 3 and 4 o'clock that afternoon; that he crossed the track and saw smoke coming from the engine; there were dead cinders in the smoke, which went in the direction of the packhouse. When he saw the fire, he had eaten supper and was out in the street in James City. He left Munger & Bennett's mill before 5:30 p. m. There was much evidence as to the quantity and quality of the tobacco stored in the packhouse and destroyed by fire.

Defendant's motion for judgment of nonsuit, made at the close of ...