Fleming v. Atlantic Coast Line R. Co.

• Citation: 236 N.C. 568,73 S.E.2d 544
• Decision Date: 10 December 1952
• Docket Number: No. 604,604
• Court: United States State Supreme Court of North Carolina
• Parties: FLEMING et al. v. ATLANTIC COAST LINE R. CO.

Page 544

73 S.E.2d 544

236 N.C. 568

FLEMING et al. v. ATLANTIC COAST LINE R. CO.

No. 604

Supreme Court of North Carolina.

Dec. 10, 1952

John Bright Hill and Isaac C. Wright, Wilmington, for plaintiffs-appellant.

Poisson, Campbell & Marshall, Wilmington, for defendant-appellee.

DEVIN, Chief Justice.

The line of railway operated by the defendant Atlantic Coast Line Railroad Company known as the A & Y Branch passes through plaintiffs' large area of land, some 5,000 acres, in a generally north and south direction. Plaintiffs allege that a large portion of their land was burned over as the result of fires set out by defendant's coal-burning locomotives on two different occasions, and accordingly in their complaint state the causes of action for damages resulting therefrom separately. The date of the fire constituting the basis of the cause of action first stated was April 11, 1950, and that of the fire causing damage to other portions of plaintiffs' land, stated in the second cause of action, was April 8, 1950.

Plaintiffs appeal from an adverse judgment as to both causes of action. The judgment as to the first cause of action was predicated on the verdict of the jury, and that as to the second cause of action followed the allowance of defendant's motion for judgment of nonsuit.

1. Coming then first to the consideration of the judgment of nonsuit as to the second cause of action, we reach the conclusion after a careful examination of the record that the ruling of the trial judge in sustaining the defendant's motion for judgment of nonsuit should be upheld.

There was evidence tending to show that the fire on April 8 complained of was set out by one of defendant's locomotives; that it caught on defendant's right of way; that there was on the right of way dry grass and straw and other combustible material, and that the fire which was thus originated spread eastward from the railroad and subsequently due to a change in direction of the wind burned westward; and that it was found later that portions of plaintiffs' land were burned over. Gainey v. Rockingham R. Co., 235 N.C. 114, 68 S.E.2d 780; Betts v. Southern R. R., 230 N.C. 609, 55 S.E.2d 76. But the testimony offered by the plaintiffs does not show the continuous progress of the fire from the point where it originated on defendant's right of way so as to afford substantial evidence that the fire thus caused extended to and burned over plaintiffs' land. The point of origin of this fire was identified as having been near Montague Station, just north of Croom's crossing. Montague Station according to plaintiffs' brief was eight or ten miles north of Fishing Creek which it was testified was the boundary of plaintiffs' land. From an examination of the record we do not think the evidence warrants the conclusion that the fire of April 8th reached the land of the plaintiffs.

While the evidence on a motion to nonsuit must be considered in the light most favorable to the plaintiff, Nash v. Royster, 189 N.C. 408, 127 S.E. 356, there must be some legal evidence of every material fact necessary to support the action before the plaintiff is entitled to have his case submitted to the jury. Mitchell v. Melts, 220 N.C. 793, 18 S.E.2d 406. The evidence must do more than raise a suspicion, or suggest a possibility. The evidence offered must reasonably tend to prove the fact in issue as a fairly logical and legitimate deduction therefrom. Stansbury, sec. 210. 'The plaintiff is required to offer evidence which reasonably tends to prove the facts essential to the maintenance of his case.' Smith v. Duke University, 219 N.C. 628, 14 S.E.2d 643, 645.

2. In the cause of action designated in the complaint as their first cause of action the plaintiffs sought to recover damages for the burning over of 1,600 acres of land near the station of Nonesta by a fire alleged to have been set out by defendant's locomotive on April 11, 1950. The issue addressed to the question of the defendant's negligence in causing this fire was submitted to the jury and answered in favor of the defendant. Judgment was entered in accord with the verdict.

The plaintiffs now seek to avoid the adverse decision on this cause of action on the ground that erroneous rulings of the trial judge constituted a material factor in influencing the verdict and bringing about the result of which they complain. In their appeal they have brought forward numerous assignments of error based on exceptions duly noted at the trial.

The plaintiffs offered a number of photographs purporting to show portions of the land burned over and the character of the growth thereon. All of these, except the one marked J, were admitted, but only for the purpose of illustrating the testimony of the witnesses. Whether or not this restriction upon the use of the photographs as evidence be regarded as meaningless, the ruling of the trial court in this instance was in accord with the uniform decisions of this Court. State v. Matthews, 191 N.C. 378, 131 S.E. 743; Stansbury, sec. 34, and cases cited. Plaintiffs, however, noted exceptions to the exclusion of Photograph 'J.' This purported to show the condition of the right of way at the point where plaintiffs contended the fire originated, but it was taken more than two years after the fire. Plaintiff offered to show that the condition of the right of way just before the fire was similar to that shown in the photograph. If it be conceded that this photograph should have been admitted under the same rule as the others to illustrate the testimony of the witnesses, we do not perceive that its exclusion was prejudicial. Plaintiffs had offered several witnesses who testified that there was on the right of way an accumulation of grass and broomstraw, and that some of the broomstraw was 2 1/2 feet high. Hence cumulative evidence, for the purpose of illustration only, contained in a picture not of the condition of the right of way as it existed before the fire but of a similar condition existing two years later, would be only in addition to the substantive evidence of the witnesses to prove the same fact. Nor does it appear in the record how the witness would have used the photograph to explain his testimony. Woods v. Roadway Express, Inc., 223 N.C. 269, 25 S.E.2d 856. Besides the defendant's defense was based largely on testimony that the fire originated elsewhere and was observed moving toward the railroad from the west before the advent of the locomotive. The ruling of the court in this respect was not of sufficient moment to warrant a new trial on that ground.

Plaintiffs' exception to the deposition of the witness Venters is without merit. The witness at the time of the trial was in Pittsburgh, Pennsylvania, and counsel had had full opportunity to cross-examine him, and had done so. There was no objection to the deposition noted before trial. G.S. § 8-82.

Plaintiffs noted exception to the judge's instruction to the jury that it would constitute negligence on the part of the defendant to permit 'inflammable and combustible material to be and remain thereon (on right of way) for a period of several months and did nothing to remove the same.' While ordinarily it would not require 'several months' to fix the railroad company with notice of the foul condition of its right of way, the instruction here complained of related to the testimony that nothing had been done to remove conbustible matter from the right of way since December of the preceding year. Herring v. Atlantic Coast Line R. Co., 189 N.C. 285, 291, 127 S.E. 8.

The plaintiff excepted to the following portion of the court's charge to the jury:

'If you find said engine was equipped with proper spark arresters, and was in a reasonably good state of repair, but that sparks did escape therefrom at the point in question and upon the right of way of the defendant, and caught it on fire, and that the right of way of the defendant was at the time and at the place in question in a foul condition by reason of the negligence of the defendant, and that the fire so caused or originated upon the right of way of the defendant spread therefrom to the lands of the plaintiffs, and damaged said lands, it will be your duty to answer the first issue Yes; if you are not so satisfied, it will be your duty to answer it No.'

It is suggested that the effect of the last clause of this instruction was to tell the jury if they found the engine was not equipped with proper spark arrester and set out fire on a foul right of way they should answer the issue No. But we think the jury understood the meaning of this instruction, in keeping with the tenor of the charge throughout, that if they found the engine was equipped with proper spark arrester and were not satisfied that sparks escaped therefrom and ignited combustible matter negligently left on the right of way they should answer the issue No.

The plaintiffs also excepted to the following portion of the judge's charge:

'I instruct you, gentlemen of the jury, there is in this case no evidence upon which you may...