Jeffress v. Norfolk-Southern R. Co.
| Citation | 73 S.E. 1013,158 N.C. 215 |
| Parties | JEFFRESS v. NORFOLK-SOUTHERN R. CO. |
| Decision Date | 06 March 1912 |
| Court | United States State Supreme Court of North Carolina |
Appeal from Superior Court, Pitt County; Whedbee, Judge.
Action by R. O. Jeffress against the Norfolk-Southern Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.
If the charge states a certain condition of affairs as being contended for by a party, when there is no evidence to support the contention, it is the duty of counsel to call the court's attention thereto.
This is an action for the recovery of damages in the sum of $4,315.95 for the alleged negligent burning by the defendant of plaintiff's prize house, or tobacco stemmery, in Greenville, N. C., on January 31, 1910. The fire is alleged to have been caused by sparks from one of the defendant's engines while being operated on Pitt street. The defendants deny liability. It was admitted, for the purposes of the trial, that the Norfolk-Southern Railroad was liable to the plaintiff if the Norfolk & Southern Railroad Company and its receiver were liable.
The plaintiff owns a lot in Greenville, on Pitt and Tenth streets, fronting 333 feet on Pitt street and 110 on Tenth street. Pitt street runs north and south. The lot is about two blocks from the Norfolk-Southern Depot, and 100 to 150 feet from the cotton platform. The Norfolk-Southern Railroad track runs down the middle of Pitt street, which is 49 feet wide. It is 20 feet from the railroad to the Jeffress property line, but this distance includes the sidewalk. The prize house of plaintiff was built in 1901. It is approximately 60 feet wide and 108.6 feet long, with an ell added, which is 40 feet by 40 feet. The nearest point of the building is about 45 feet from the railroad. The boiler room is 25 feet. The railroad, including track and cross-ties, is 8 feet wide. The building caught fire about 12 o'clock noon, and was totally destroyed. The building had been leased for several years to Skinner & House. The rest of the lot had been rented out the year before. At the time of the fire, the vacant part of the lot was covered with cornstalks and grass. The fire was first discovered burning in the grass on the lot, and in this way reached the building. There was a city ordinance in force at the time, and had been in force for several years, providing that
In August, 1907, the plaintiff instituted another action against the Norfolk & Southern Railroad Company for recovery of damages in the sum of $3,000 to this same lot, alleged to have been caused by the construction of this same railroad track down Pitt street, alleging, among other elements of damage, "by reason of the frequent passing of the defendant's trains in such close proximity to plaintiff's property, plaintiff's property has become endangered from loss by fire arising from the constant issuing of smoke and sparks from defendant's engines, and has become annoying to the plaintiff and materially interferes with the operation of plaintiff's factory." This action was tried at March term, 1911 resulting in a judgment of $50 for the plaintiff, and this judgment was affirmed on appeal by plaintiff to Supreme Court at fall term, 1911.
There was evidence for the plaintiff tending to show that the defendant's freight train was passing along Pitt street about 11:30 o'clock, and did some shifting on this street, that the engine was emitting sparks, and that some of the sparks fell upon the vacant part of the Jeffress lot, or sidewalk, and that shortly thereafter the grass was burning in two places. The grass burned up near to the boiler room which was the nearest point to the street, when it was discovered by Archie Lockland, who had charge of the building, and had the key to the same. He testified that he put the fire out and went home. In about 20 minutes the building was on fire. The building burned about 12 o'clock noon. There was also evidence for the plaintiff that the grass caught again from a spark from the engine after Lockland had put it out, and that this was the fire that eventually burned the factory. The plaintiff's evidence showed that the grass caught on the plaintiff's lot or sidewalk, and that the fire was communicated to the building by burning grass; the plaintiff himself testifying that the nearest burnt grass to the railroad track was within 20 or 15 feet of the track. All of the evidence tended to show that the fire was communicated to the building by the burning grass, and there was no evidence that it caught directly from a spark. The plaintiff's evidence tended to show that the building and its contents were worth between $8,500 and $9,000. He collected $4,225 insurance on the building and contents.
The evidence of the defendant was that the freight train No. 30, pulled by engine No.
115, came into Greenville about 11 o'clock a. m., and left about 11:40; that the engine was properly equipped with a spark arrester in general and approved use, and that the netting of the spark arrester was in fact smaller and finer than the standard, it being 3 holes to 1 inch of space instead of 2 3/4 holes to the inch; that this rendered the danger of sparks escaping much less, on account of the fact that the netting would stop smaller sparks; that it stopped practically all sparks, and would choke with sparks, and cause the engineer to stop at stations and knock them out; that the spark arrester was in good condition on that date. There was evidence of the good condition of the spark arrester for a number of days both prior and subsequent to the fire, and that the engine was being run carefully and properly by a competent engineer. There was evidence for the defendant that the building and personal property was worth less than the amounts claimed by the plaintiff. There was other evidence for the plaintiff.
The defendant does not plead contributory negligence, and the issues and the responses thereto are as follows:
There was a judgment in accordance with the verdict, and the defendant appealed.
Rouse & Land, for appellant.
F. G. James & Son and Harry Skinner, for appellee.
The exceptions appearing in the record present for our consideration the following contentions made by the defendant:
(1) That the plaintiff was...
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