Ellis v. Portsmouth & Roanoke Rail Rd. Co.

• Decision Date: 31 December 1841
• Citation: Ellis v. Portsmouth & Roanoke Rail Rd. Co., 2 Ired. 138, 24 N.C. 138 (N.C. 1841)
• Court: North Carolina Supreme Court
• Parties: ROBERT ELLIS v. THE PORTSMOUTH AND ROANOKE RAIL ROAD COMPANY.

2 Ired. 138

24 N.C. 138

ROBERT ELLIS

v.THE PORTSMOUTH AND ROANOKE RAIL ROAD COMPANY.

Supreme Court of North Carolina.

December Term, 1841.

Where A., in an action against B. for damage, caused by his negligence, shews damage resulting from the act of B., which act, wth the exertion of proper care does not ordinarily produce damage, he makes out a prima facie case of negligence, and must recover, unless B. proves he has used proper care or proves some extraordinary accident, which renders care useless.

This was an appeal from the judgment of the Superior Court of Law of Northampton County, at Fall Term, 1841, his Honor Judge DICK presiding. It was an action on the case to recover damages for burning five hundred pannels of fence, the property of the plaintiff. The plaintiff proved that he had a line of fence running parallel with the rail road track, belonging to the defendants, at the distance of fifty feet, in the County of Northampton--that on a certain day in the Spring of 1839, immediately after the passage of one of the locomotives, belonging to the defendants, the fence was discovered to be on fire and about five hundred pannels of fence were burnt before the fire could be stopped. The plaintiff's witness further proved that the engines run on the road usually had the spark-catchers or the funnel, but whether they were on, upon that day, he did not recollect. The defendants introduced no testimony. The defendants' counsel contended that they were only liable for negligence-- that if they used the care that the nature of their business allowed, they were not liable. The Court charged the Jury that if the evidence satisfied them that the plaintiff's fence was burned by fire thrown from the defendants' engine, the defendants were liable to the plaintiff's recovery, upon the principle that every one is bound so to use his own property as not to injure his neighbor. The Jury returned a verdict for the plaintiff. The defendants moved for a new trial, which was refused, and judgment being given for the plaintiff, the defendants appealed to the Supreme Court.Iredell for the plaintiff to shew the general liability of the defendants in cases of this kind , cited Furberville v Stamp, 1 Ld. Ray. 264. 1 Leigh's N. P. 557, 561. Weld v Gas Light Company, 2 Eng. C. L. R. 350. Drew v The New River Company, 25th Eng. C. L. Rep. 634. Vaughan v Menlove, 32 Eng. C. L. R. 613. As to proof of negligence, in such cases, that proof of the injury was prima facie proof of negligence, Christie v Griggs, 2 Camp. Rep. 79.

Whitaker for the defendant . The opinion of the Court below does not raise the question whether the burning, &c., is prima facie evidence of neglect, but only lays down the broad proposition that every one is liable for an injury done to his neighbor's property in the use of his own. In every case of this kind negligence is a material averment in the plaintiff's declaration, and whatevever is material to be averred is equally so to be proved. 1 Chitty Plead. 373. 2 Chitt. 330, 332. Where one in a highway driving his carriage does an injury to another not in his care, he is not from the act alone supposed guilty of a want of due care. Certainly he can excuse himself. In the case of common carriers, who are in the nature of insurers, an injury to a person whom they have undertaken to carry goes to the Jury as evidence of neglect only, which may be rebutted if it appear to the Jury that the defendant used due care. Stockton & Stokes v Saltonstall, 13 Peters 181. Mayhew v Bayer, 2 Com. L. R. 454. Curtis v Drinkwater, 22 c. Com. L. R. 51. The cases cited by the plaintiff's counsel do not support the Judge's charge. They affirm that negligence must be proved and in the particular cases state what will be evidence to go to the Jury of that negligence, and are all of them cases of injuries by carriers to their own passengers. The charge is wrong, even if an injury had been done to a passenger; there must be negligence and it must be submitted to the Jury whether there be or not. 22 Com. L. R. 51. The defendants were not liable for doing their duty. By their charter they are authorized to use an engine and are...