Simmons v. John L. Roper Lumber Co.

• Decision Date: 03 October 1917
• Docket Number: 218.
• Parties: SIMMONS ET AL. v. JOHN L. ROPER LUMBER CO.
• Court: North Carolina Supreme Court

93 S.E. 736

174 N.C. 220

SIMMONS ET AL. v. JOHN L. ROPER LUMBER CO.

No. 218.

Supreme Court of North Carolina

October 3, 1917

Appeal from Superior Court, Onslow County; Lyon, Judge.

Action by H. C. Simmons and others against the John L. Roper Lumber Company. From a judgment for plaintiffs, defendant appeals. No error.

This action was brought to recover damages for burning plaintiffs' woods, which they contend was caused by the defendant's negligence. The court in the charge states concisely the principal facts, upon which the plaintiffs claim the right to recover. It is alleged by plaintiffs:

"That about May 1, 1914, while the defendant, Roper Lumber Company, was in possession of certain land, and cutting the timber, building tramroads for the purpose of getting the timber out, hauling logs to load, that they negligently and carelessly permitted fire to escape from their engines, and thereby destroyed a large quantity of timber that was not covered by the deed made by them to the Blades Lumber Company; that there were two fires several days apart, and there was no one else in the woods at the time, except those who were employed by the Roper Lumber Company, and that one of the fires originated from the right of way that they had weeded out for the purpose of putting down cross-ties and iron, and that no one else was there when the fire started; that the fire originated from or near that place, and that defendant's servants negligently and carelessly permitted the fire to get out, and that after the fire got out they, through their carelessness and negligence, did not stop it, and did not get a sufficient force for that purpose; that the fire was originated near where they were at work, in a pile of logs, that had been hauled there; and that some of the parties working for the Roper Lumber Company were at work near by, and the fire spread out on the south side of the road and did great damage."

The principal exception of the defendant is that there was no evidence of negligence We will therefore make such excerpts from the testimony as will show what the proof was upon which the plaintiffs relied, though will not state all of it consecutively, but only connectedly, as to that part of it which is material:

R. W Craft testified:

"Defendant's train ran on the only right of way he knows of in the woods in question."

A. D Wood testified:

"I know about the fire that started on and burned over that land. * * * I passed there and saw the fire on one of the rights of way. I was 60 or 70 yards from the fire, I think. I had seen the right of way before I saw the fire on it. I think the hands had finished it. It came from the Pender line of the Roper Lumber Company. They had been making the right of way, and it was just cleaned off. I saw that the logs and trees were cut, and that it was weeded to secure the fire. The right of way was in condition to burn. I don't recollect how long it had been since it rained, but it was very dry; it was ordinary grass and straw on the ground. I heard some knocking going on around there. I went the next day where I had seen this, and found fresh timber cut there. I know that afterwards the Roper Lumber Company hauled the logs. Some of the grass on the track was dead, and some was alive. It had not burned much at that time. It was straw and wire grass; pine straw; it was dry. The wind was blowing in a northerly direction that morning. I saw Mr. Hub Jones, and he was working for the Roper Lumber Company, and was looking after the fire when I found him. I did not see any one else. The fire came from towards the train. It was burning in a few feet of the train. There was a train operating on the tram. I think the loader was on that line. I went near enough to see that they were trying to stop the fire. The loader was operated by a steam engine."

J. S. Raynor testified:

"There was a lot of pine tops which were dry and trashy. The ground where the fire spread was right smart trashy and dry bush. The best I can remember the engine was not far from the fire at the time I first noticed the fire break out."

There was a verdict for $600 in favor of the plaintiffs. Judgment was entered thereon, and defendant appealed, after reserving its exceptions.

Frank Thompson, of Jacksonville, and L. I. Moore, of New Bern, for appellant.

Duffy & Day, of Jacksonville, and G. V. Cowper, of Kinston, for appellees.

WALKER, J. (after stating the facts as above).

The first question is whether there was sufficient evidence, in law, to support the verdict, or, in other words, was there any evidence that the defendant, by its servants, negligently burned the timber on plaintiffs' land?

After a most careful review of the testimony, we think that the case was properly submitted to the jury upon the question of negligence, and that the evidence was sufficient to support the verdict. It was said in Deppe v. Railroad Co., 152 N.C. 79, 81, 67 S.E. 262:

"The defendant contends that no witness testified that he saw sparks emitted by the engine or that he saw the sparks from the defendant's engine ignite the plaintiff's lumber kiln. In considering this contention, it must be remembered that this fire occurred in the daytime, in the brilliancy of a summer sun, rendering sparks emitted by an engine incapable of being seen by the human eye. That no one saw the sparks ignite the burned property was the fact in McMillan v. Railroad, 126 N.C. 725 , and Williams v. Railroad, 140 N.C. 623 , in which latter case this court comments upon a similar contention: 'No one testified that he saw the sparks fall from the engine upon the right of way. It is rarely that this can be shown by eyewitnesses, for it would be put out by the observer. But here the fire was seen on the right of way; it burned along the track between the ditch and the ends of the ties, and thence had gone into the woods. The wind was blowing from the northwest across the track, the fire being on the south side. Two witnesses testified that they first saw the smoke about 30 minutes after the defendant's engine passed. How long before that the fire began no one knew, but there was no fire before the engine passed. The other witnesses first saw the fire after a longer interval, and there was evidence that the fire burned both ways. These were matters for the jury.' * * *

In considering the origin of the fire, it is immaterial whether the fire caught on or off the right of way."

If this is a correct statement of the law as applicable to the Deppe Case, it must be so in the present one, when we consider it with reference to the facts appearing in this record, which are much stronger, as tending to show negligence on the part of the defendant, than those in the other case. It was said by Pearson, J., in Bottoms v. Kent, 48 N.C. 154, quoted with approval in Cheek v. Lumber Co., 134 N.C. 225, 228, 46 S.E. 488, 489:

"As a condition precedent to the admissibility of evidence, the law requires an open and visible connection between the principal and the evidentiary facts. This does not mean a necessary connection which would exclude all presumptive evidence, but such as is reasonable, and not latent or conjectural."

It seems to us that the case of Ashford v. Pittman, 160 N.C. 45, at page 47, 75 S.E. 943, at page 944, is on all fours with this case in all essential respects. Justice Brown there stated:

"No evidence is offered which tends in the least to explain or throw any light upon the cause of the fire unless it caught from the fire around the pot built within 30 feet of the stables. It is true that the evidence does not prove conclusively that the stables caught from the fire built so near them, but we think the evidence is of such circumstantial character that it should be submitted to the jury to be determined whether the building the fire around the pot caused the burning of the stables. Circumstantial evidence has frequently been allowed to determine matters of much greater consequence, both criminal and civil. There are a number of cases in our reports where the evidence of circumstances has been allowed to go to the jury as bearing upon the origin of a fire"--citing McMillan v. R. R. Co., 126 N.C. 726, 36 S.E. 129; Aycock v. R. R. Co., 89 N.C. 327; Simpson v. Lumber Co., 133 N.C. 101, 45 S.E. 469.

In the McMillan Case, when the point was suggested that there was no eyewitness who testified to the origin of the fire, but the plaintiff relied only upon circumstances as to how the fire originated, the court remarked that, while it was true the evidence was entirely circumstantial, it frequently happened in cases of gravity, and of the greatest importance, both criminal and civil, that this kind of evidence is resorted to for proving or disproving the existence of an essential fact; and it is added that in the case then under consideration the undisputed facts were that there was a railroad track and right of way where the defendant's engine was, and had been, and immediately afterwards the fire was ignited which spread to the plaintiff's lands and damaged them, the land contiguous to the track being covered with combustible material, that is, covered with dead broom straw. The court held the facts sufficient to go to the jury. The Simpson Case is to the same effect. There the sparks were not actually seen by any one. It appeared in that case that the train had passed on the defendant's track, and shortly thereafter a fire was discovered not far from the plaintiff's house and near the track. That case is also very much like ours; the difference, if any, being that in this case there were fires on both sides of the track, while in the Simpson Case the fire was confined only to one side. The mere fact that in the Simpson Case the train was...