Oval Oak Mfg. Co. v. Atlantic & Y.R. Co.

• Decision Date: 27 January 1926
• Docket Number: 117.
• Parties: OVAL OAK MFG. CO. v. ATLANTIC & Y. R. CO. ET AL.
• Court: North Carolina Supreme Court

131 S.E. 268

191 N.C. 109

OVAL OAK MFG. CO. v. ATLANTIC & Y. R. CO. ET AL.

No. 117.

Supreme Court of North Carolina

January 27, 1926

Appeal from Superior Court, Chatham County; Devin, Judge.

Action by the Oval Oak Manufacturing Company against the Atlantic & Yadkin Railroad Company and A. E. Smith and another receivers. From a judgment for plaintiff, defendants appeal. No error.

Instructions in action for damages from fire held proper.

Civil action to recover damages for loss of plaintiff's warehouse and contents, destroyed by fire alleged to have been caused by defendant, in negligently operating an engine with a defective spark arrester over its railroad passing by said warehouse, and thereby causing sparks and fire emitted by said engine to fall upon and set fire to said warehouse. Upon defendant's denial of liability, the following issues were submitted to, and answered by, the jury:

"(1) Was plaintiff's property burned by the negligence of defendant as alleged in the complaint? Answer: Yes.

(2) What damages, if any, is plaintiff entitled to recover therefor? Answer: $6,000."

From judgment upon this verdict, defendant appealed.

Walter D. Siler, of Pittsboro, and King, Sapp & King, of Greensboro for appellants.

Long & Bell and Wade Barber, all of Pittsboro, for appellee.

CONNOR J.

The only assignment of error upon this appeal is based upon defendant's exception to the refusal of the court to allow defendant's motion, first made at close of plaintiff's evidence, and upon denial renewed at the close of all the evidence, for judgment as in case of nonsuit. C. S. 567. No exception was taken to the admission or rejection of evidence, or to instructions of the court to the jury. The charge was clear, full, and correct.

The court instructed the jury that it was the duty of defendant to exercise due care to keep and maintain, in reasonably proper and effective condition, such means and appliances for the prevention of the escape of fire from its engine as are approved and in general use by railroad companies of the character of defendant in this section of the country; that it was also its duty to exercise due care to have its engines handled in a reasonably proper manner by a reasonably competent and skillful engineer; that the law does not require railroad companies to prevent the escape of fire from engines entirely, but only to use reasonable care to prevent such escape, such reasonable care being that which a reasonably prudent man, under like circumstances, and charged with a like duty, would have exercised. Necessarily steam engines must emit smoke and some fire and cinders. "Before the plaintiff can recover from the railroad company, he must show the jury, by the greater weight of the evidence, that the railroad company has failed to exercise reasonable care to prevent the escape of fire, and that such failure of duty upon the part of the railroad company was the proximate cause of the injury."

The court instructed the jury that the burden of proof was on the plaintiff, in the first place, to satisfy the jury that the fire which destroyed plaintiff's property was set out and caused by defendant; that is, that sparks from defendant's engine caused the fire which destroyed the warehouse. "If the plaintiff has failed to satisfy you about that, then you would answer the first issue, 'No,' and the plaintiff would go out of court; but, if the plaintiff has satisfied you, by the greater weight of the evidence, that the fire which burned the warehouse was caused by sparks which came from plaintiff's engine, that fact alone would not entitle plaintiff to have you answer the issue in its favor. The plaintiff must further satisfy you, by the greater weight of the evidence, that the escape of the sparks from the engine was due to the negligence of defendant; but there is this rule of law which the courts lay down: If the jury finds from the evidence, and by its greater weight, that fire came out of defendant's engine and set fire to, and burned up, plaintiff's warehouse, that will make what we call in law a prima facie case; not that that fact alone would decide the matter, but, if found by the jury, it would be sufficient to carry the case to the jury to determine upon all the evidence whether they are satisfied by its greater weight that the escape of the sparks from the engine was due to the negligence of defendant as alleged in the complaint. The burden of proof is always on the plaintiff to show the jury by the greater weight of the evidence not only that the defendant caused the fire which destroyed plaintiff's property, but also that the fire was due to the negligence of defendant as alleged. The burden of proof does not change; the law does not require that the defendant shall offer evidence--it may do so or not as it sees fit."

These instructions are fully supported by many decisions of this court. Dickerson v. Railroad, 190 N.C. 292, 129 S.E 810; Cotton Oil Co. v. Railroad, 183 N.C. 95, 110 N.E. 660; Williams v. Mfg. Co., 177 N.C. 512, 99 S.E. 370; Bradley v. Mfg. Co., ...