Matthis v. Johnson

• Decision Date: 06 October 1920
• Docket Number: 223.
• Citation: 104 S.E. 366,180 N.C. 130
• Parties: MATTHIS v. JOHNSON.
• Court: North Carolina Supreme Court

104 S.E. 366

180 N.C. 130

MATTHIS v. JOHNSON.

No. 223.

Supreme Court of North Carolina

October 6, 1920

Appeal from Superior Court, Sampson County; Kerr, Judge.

Action by O. L. Matthis against J. D. Johnson. From judgment for plaintiff, defendant appeals. No error.

In an action for setting fire to plaintiff's land and timber from defendant's engine operated on his tramroad testimony of plaintiff's witnesses, showing that defendant's engine had cast sparks before, is some proof of its bad condition.

Martin Hairr, a witness for the plaintiff, testified as follows:

That he lived about 2 1/2 miles from where the fire originated that he had not seen but one engine of the defendant, that he saw this engine, just prior to this fire, put out fire that it was a week or a little better before the fire in question occurred.

To this last statement the defendant in apt time objected. Objection overruled, and defendant excepts.

Susan H. Hairr, a witness for the plaintiff, testified as follows:

I have seen the defendant's engine. I have not seen but one. I saw it put out fire about a week before this fire, on April 14th.

The defendant in apt time objected. Objection overruled, and defendant excepts.

K. A. Robinson, witness for the defendant, testified:

I was working for the defendant, and was with the engine that day. We had both spark arresters. With both spark arresters on, the engine did not cast out fire. We passed Fisher's mill creek that morning about half past 8 o'clock with the engine. Opposite where this fire occurred, it was down grade, and we shut off the steam. There was no exhaustion; the engine does not put out fire when the steam is shut off. The fire occurred some time between 10 and 11 o'clock that morning. I came back to the fire with a hand car. There was no fire on the right of way. Andrew Robinson, the engineer in charge, had been operating the engine for 10 or 12 years, and was a skillful and competent engineer.

Charlie Cromartie, a witness for the defendant, testified as follows:

I went to the fire with Mr. Carter on the hand car. A Mr. Pearson was there, fighting the fire alone, when we got there. Mr. Pearson is now dead. He lived within a few hundred yards of where the fire originated.

Q. What statement, if any, did Mr. Pearson make to you about where the fire started? (Plaintiff objected. Sustained, and defendant excepts.)

If permitted to answer this question the witness would have said:

I was present with Mr. Nathaniel Carter when we came up to the fire, and heard Mr Evan Pearson state how and where the fire started. He stated that it began on side of the dirt road about 200 yards from the tramroad, and was small when he got to it, about size of a room, and would have been easy to put out with a little help.

T. F. Fowler, a witness for the defendant, testifies as follows:

I saw the defendant's hands burning the right of way that spring some time before the fire occurred. I pass there twice a day. It was burnt something like 100 feet from the track on each side. Mr. Pearson, who is now dead made the statement as to where the fire started.

Q. What statement, if any, did Mr. Pearson make to you as to where the fire started?

The plaintiff objected. Sustained, and defendant excepts.

If permitted to answer the question as to what statement Mr. Pearson made to this witness about the origin of the fire, or where it started, the witness would have said:

Evan Pearson (now dead) told me the same day of the fire, and while the fire was still burning, that he was the first man that got to the fire; that it originated about 200 yards from the tramroad, in sight of his house; that he was plowing, and saw it after it started; that it started beside the dirt road, and not near the tramroad.

This action was brought to recover damages for setting fire to plaintiff's lands and the timber thereon, in April, 1916, and burning the same. The fire came from defendant's engine which was operated on his tramroad. There was evidence tending to show that the fire was set out by defendant's engine, and that it burned plaintiff's property, and that it started at the side of the tramroad and near to it, or at a trestle on the road where there were tree tops, grass, and other dry and combustible material, and that it burned over a large area of land. One witness stated that the engine passed him about one half mile from where he first saw the smoke rising from the fire, and when he went to the place it had burned some distance from the trestle. There was further evidence tending to show that defendant's engine was the cause of the fire, but it is not necessary to recite it here in detail. The wind carried the fire from the tramroad to the dirt road, and all land between the two had been burned over, and some of the evidence tended to show that the engine had passed the place shortly before the fire and smoke were first seen. The engine was seen to set out fire a week before this fire in question occurred. This testimony was objected to by defendant, and his objection was overruled by the court, and an exception taken upon the ground that there was no evidence that the engine was in the same condition on the two occasions. The witnesses for plaintiff stated that defendant's right of way had not been burned off, but was very foul. The defendant's evidence tended to show that the fire was not started on its right of way, or by its engine, but that it originated elsewhere, and also that defendant had not been guilty of any negligence. The jury returned a verdict for the plaintiff, and assessed his damages at $1,000. Judgment thereon for plaintiff. Defendant appealed.

Butler & Herring and H. E. Faison, all of Clinton, for appellant.

Fowler & Crumpler. of Clinton. and Geo. A. Smith, of Charlotte, for appellee.

WALKER, J. (after stating the case).

We will consider the exceptions in the order of their statement in the record:

The testimony of Martin Hairr and Susan H. Hairr was competent, and was properly admitted. The burden was upon the defendant to show that his engine was provided with a spark arrester, or other appliances, reasonably sufficient to prevent the escape of sparks or live coals from the smokestack, or the fire box, and this is rested upon the ground that the defendant necessarily has, or should have, peculiar knowledge of the facts, and is better informed as to the condition of his engine operated on his tramroad than a plaintiff, who would generally be ignorant of it. This Court in Aycock v. Railroad Co., 89 N.C. 329, stated the principle governing in such cases. In Aycock v. Railroad Co., Chief Justice Smith, writing the OPINION, cited Railroad v. Schultz, decided in 1880, and reported in 2 Am. & Eng. R. R. Cas. at page 271, and notes, and then said of it: "The doctrine there announced by Gordon, J., is, 'That if reasonable precautions are taken in providing them [the locomotives] with those appliances which are deemed best for the prevention of such damage [from fire communicated], the company, or persons using them, cannot be made liable, though they fire every rod of the

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