Hardy v. Hines Bros. Lumber Co.
| Decision Date | 25 September 1912 |
| Citation | 75 S.E. 855,160 N.C. 113 |
| Parties | HARDY et al. v. HINES BROS. LUMBER CO. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Greene County; Whedbee, Judge.
Action by W. B. Hardy and another against Hines Bros. Lumber Company. Judgment for plaintiffs, and defendant appeals. Affirmed.
Testimony that the fire was seen on the right of way and track implies necessarily that there was a right of way, and is some evidence of defendant having a right of way.
Rouse & Land and Loftin & Dawson, all of Kinston, and J. P Frizzelle, of Snow Hill, for appellant.
Langston & Allen, of Goldsboro, and J. G. Anderson, for appellees.
These actions were brought by W. B. Hardy and B. T. Hardy against the defendant to recover damages for negligently burning their timber. The allegations as to the burning, they being substantially the same in the two cases, are that the defendant's locomotive engine set fire to combustible material on its track and right of way, which was covered with dry leaves, pine straw, and wood mould, and in a very foul condition, and that the fire spread to the adjoining land, burning over a considerable area; that an effort was made to extinguish the flames, plaintiffs taking some part in it, but that some days afterwards the fire, which had been left smouldering in the woods, broke out afresh, extending to the lands of plaintiffs and burning some of their timber. The cases, by consent of all parties, or rather without objection, were consolidated by order of the court and tried together; the facts being practically alike.
The fire, as testified by at least two of plaintiffs' witnesses, L. C. Turnage and W. C. Carlyle, was first seen on the track and right of way, just after the train had passed and there was evidence that the smokestack of the engine was defectively constructed, so that large and live sparks could be emitted therefrom, and that the same engine had before caused fires along the track. It is true that there was evidence to the effect that the engine was properly constructed and supplied with an efficient spark arrester and a good ash pan, save when bad wood was used; but the facts we have stated were fully deducible from some of the evidence by the jury, and they seem, under a perfectly correct charge, to have accepted them as proven to their satisfaction. It cannot be disputed that there was evidence sufficient to establish the charge of negligence in either of two aspects--a defective engine and a foul and dangerous track and right of way--either of which would constitute actionable negligence if it caused the fire in the beginning, and was the proximate cause of the damage. We said recently, in Kornegay v. Railroad, 154 N.C. 389, 70 S.E. 731: "When it is shown that the fire originated from sparks which came from the defendant's engine, the plaintiff makes out a prima facie case, entitling him to have the issue as to negligence submitted to the jury; and they were justified in finding negligence, unless they were satisfied, upon all the evidence in the case, that, in fact, there was no negligence, but that the defendant's engine was equipped with a proper spark arrester or ash pan, and otherwise to prevent the emission of sparks or fire, and had been operated in a careful or prudent manner." This was but a summary of what had been so often decided in former cases. Williams v. Railroad, 140 N.C. 623, 53 S.E. 448; Craft v. Timber Co., 132 N.C. 151, 43 S.E. 597; Knott v. Railroad, 142 N.C. 238, 55 S.E. 150; Cox v. Railroad, 149 N.C. 117, 62 S.E. 884; Deppe v. Railroad, 152 N.C. 79, 67 S.E. 262; Currie & McQueen v. Railroad, 156 N.C. 419, 72 S.E. 488. We early stated the proposition, which seems to be a clear logical syllogism, that "when the plaintiff shows damage resulting from the act of the defendant, which act, with the exercise of proper care, does not ordinarily produce damage, he makes out a prima facie case of negligence, which cannot be repelled but by proof of care, or some extraordinary accident which makes care useless." Ellis v. Railroad, 24 N.C. 138; Chaffin v. Lawrence, 50 N.C. 179; Aycock v. Railroad, 89 N.C. 321; Haynes v. Gas Co., 114 N.C. 203, 19 S.E. 344, 26 L. R. A. 810, 41 Am. St. Rep. 786; and more recently in Mizzell v. Manufacturing Co., 158 N.C. 265, 73 S.E. 802. The rule may be justified, not only on the ground that negligence is a fair and reasonable deduction from the fact of casting the spark from the engine, as ordinarily, when care is exercised, such a result does not follow, but for the further reason that the proof of care can more easily be produced by the defendant, who has control of the engine and should know its true condition, than by the plaintiff, who may be ignorant of it. Aycock v. Railroad, supra. We do not say that there is no exception to or qualification of the rule; but it applies in this case, and that is sufficient for our purpose.
Referring to this subject in Deppe v. Railroad, 152 N.C. at page 82, 67 S.E. 263, Justice Manning thus states the rule applicable to the state of facts here presented: ' He adds that this is the common law of England, and has been followed in many states, several of which he names, and he cites the following cases decided by this court as sustaining it: Ellis v. Railroad, supra; Manufacturing Co. v. Railroad, 122 N.C. 881, 29 S.E. 575; Hosiery Co. v. Railroad, 131 N.C. 238, 42 S.E. 602; Lumber Company v. Railroad, 143 N.C. 324, 55 S.E. 781.
The evidence in our case, though somewhat circumstantial, tends to show conclusively that the fire was ignited by live sparks or coals that fell from the defendant's engine. This being so, the proof is also clear that the track and right of way were foul with dry stubble, which readily caught from the spark or cinder, and that there and in that way the fire originated. If it caught off the right of way, there is equally strong evidence of negligence against defendant; and it was for the jury to find the fact. The question was fairly submitted to them. It was sufficient for them to find that the fire occurred in either one of the suggested ways; for it does not, in law, require two acts of negligence to make a wrong. Knott v. Railroad, supra.
But defendant contends that if the fire was negligently caused by the engine dropping a live spark from the smokestack, or a live cinder from the ash pan, it was apparently extinguished after burning over intervening land for some distance from its track; and, while it smoldered in the stumps, and, perhaps, in other places, it was several days before it broke out again and destroyed the plaintiffs' timber. The evidence is that on June 12, 1911, and at first, it burned timber on land next to the railroad track, before it reached the plaintiffs' timber on that day, a small portion of which was consumed, and that on June 23, 1911, it "sprang up" again, and spread to plaintiffs' other timber. The evidence also discloses the fact that plaintiffs assisted in the attempt to put out the fire; but it turns out that the combined efforts of all the neighbors failed to extinguish it. But it is argued from these facts that the fire that destroyed the plaintiffs' woods on June 23, 1911, was not proximately caused by that which started on the defendant's right of way June 12, 1911. Neither the distance traversed by the fire, though lands of other parties intervened, nor the time elapsing between the initial fire and the final conflagration, which destroyed the plaintiffs' property, is conclusive against the existence of proximate cause; that is, that the second fire was proximately caused by the first. The connection of cause and effect must be established; the breach of duty must not only be the cause, but theproximate cause, of the damage to the complaining party. We may thus illustrate and state the rule: The proximate cause of an event is understood to be that which, in a natural and continuous sequence, unbroken by any new, independent cause, produces the event, and without which it would not have occurred. This is a general statement of the rule. 1 Sh. & Redf. on Neg. (5th Ed.) § 26. The learned authors add something which is peculiarly applicable to the facts of our case: 1 Sh. & Redf. (5th Ed.) p. 28.
While we do not say that the question of proximate cause may not sometimes, owing to the special facts of the case in hand resolve itself into one of law, it has been said to be the general and true rule that what is the proximate cause of an injury is ordinarily a question for the jury; the court instructing them as to what the law requires to constitute it, and the jury applying the law to the facts. It is not a question of science or of legal knowledge. It is to be determined as a fact, in view of the circumstances of fact...
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