McCoy v. Carolina Cent. R.R.

• Decision Date: 23 October 1906
• Citation: 55 S.E. 270,142 N.C. 383
• Parties: McCOY et ux. v. CAROLINA CENT. R.
• Court: North Carolina Supreme Court

55 S.E. 270

142 N.C. 383

McCOY et ux. v. CAROLINA CENT. R.

Supreme Court of North Carolina

October 23, 1906

Appeal from Superior Court, Brunswick County; O. H. Allen, Judge.

Action by L. C. McCoy and wife against the Carolina Central Railroad. From a judgment for plaintiff, defendant appeals. Reversed.

Evidence held insufficient to sustain a verdict for plaintiff.

The plaintiff sued to recover damages alleged to have been sustained by reason of the defendant's negligence in keeping a foul right of way, to which it was charged that fire was communicated from defendant's engine and thence to plaintiff's land. The following issues were submitted "(1) Is the plaintiff the owner of the lands mentioned and referred to in the complaint? A. Yes. (2) Was the plaintiff damaged by the negligence of the defendant, as alleged in the complaint? A. Yes. (3) What damage is plaintiff entitled to recover? A. $250."

Weaver & Ruark, for appellant.

BROWN J.

The only allegation of negligence set out in the complaint is as follows: That on said date the said defendant carelessly and negligently allowed its right of way to become foul with dry grass and other inflammable matter, which was fired by sparks from a passing engine, the fire immediately reaching plaintiff's land, burning over said land, destroying and burning up quantities of timber, pine, straw, and other products of value, to plaintiff's damage $800." It is to be observed that no negligence is alleged other than such as relates to the condition of the right of way. The controversy is therefore limited to two inquiries: Was the right of way in the condition alleged? If so, was the fire caused by such alleged negligence?

The plaintiff offered the following evidence: L. C. McCoy testified solely to the title to the land and damages. He knew nothing of the fire or its cause, or the condition of the right of way. Charles McCoy testified: "I was at Northwest Station on the day of the fire. The train had passed going towards Wilmington. After it passed a fire sprang up. The place where the fire started was between the telegraph pole and the railroad track on the right of way. The fire also caught further down in a bay adjoining the right of way. This second fire, which caught in the bay broke out into a big fire and burned over the land, and is the one which did the damage. There was some dry grass where the fire first started." On cross-examination he said "I do not know the width of the defendant's right of way where the fire started. I do not know the width of the right of way at the point where the bay adjoined same. I do not know whether the telegraph pole is on the defendant's right of way. The place where the fire first started was very clean. There was a little dry grass. It had been burned over in the spring of 1900. There was an extraordinary drought at that time. It had been a very long dry spell and rain was much needed. When the fire started in the bay, it broke out into a big fire, and burned over the land." At the conclusion of this evidence plaintiff rested. Thereupon defendant moved to nonsuit plaintiff and dismiss the action under the statute for that there was no evidence of negligence as alleged in the complaint. This motion was overruled and defendant excepted. The defendant introduced five witnesses, who testified that the right of way was perfectly clean and...