#### THE SNOW LUMBER COMPANY v. ATLANTIC COAST LINE RAILROAD COMPANY.

(Filed 27 October, 1909.)

1. Appeal and Error — Issues of- Fact — Questions for Jury.

In an action for damages to plaintiff’s lumber from fire alleged to have been caused by a spark from defendant’s engine, the question being whether the defendant’s engine or a spark from plaintiff’s mill caused the fire, the issue is one of fact for the jury to determine under conflicting evidence, with the burden upon plaintiff, when no competent evidence has been excluded and the judge has correctly charged the law.

2. Appeal and Error — Expert Witness — Qualification — Record — Evidence Required.

When evidence is'offered and ruled out by the trial judge the burden is upon the appellant to show on appeal that prejudicial error was committed. And an exception to the exclusion of expert evidence is not tenable on appeal when it does not appear of record that his Honor failed, when requested by appellant, to find the preliminary question of the qualification of the witness as an expert, or that the evidence excluded was competent.

3. “Opinion Evidence” — Qualifications—Competency.

For “opinion evidence,” as distinguished from expert evidence to be competent, there must be evidence tending to prove that the witness, by whom it is offered, has had personal observation and *218knowledge of the facts and conditions of the subject upon which it is offered, as well as that, from his practical training and experience, he can aid the jury in reaching a correct conclusion.

4. Same.

In this case defendant offered the “opinion” of its experienced engineer as to whether the burning of plaintiff’s lumber near defendant railroad company’s right-of-way was caused by a spark alleged to have come from a defective smokestack on defendant’s engine, or from plaintiff’s own mill. It did not appear that the witness had personal observation of all the pertinent and material facts and circumstances, and it is held that his opinion relative to the cause of the fire was incompetent.

Brown, J„ did not sit upon the hearing of this case.

Appeal from W. B. Allan, J., May Term, 1909, of Sajvípson.

Tbe plaintiff sued to recover tbe value of a large amount of lumber wliicb was alleged to bave been destroyed by fire negligently communicated to it by an engine operated by tbe defendant on its branch line between Clinton and Warsaw, N. C. Tbe defendant denied tbe negligent acts alleged against it. Tbe particular negligence of tbe defendant alleged was tbe defective condition of tbe spark arrester on its engine. Tbe following issues were submitted by bis Honor and were answered as set out:

1. “Did tbe defendant set fire to and burn tbe property of the plaintiff ?” Answer: “Yes.”

2. “If so, was such burning caused by the negligence of tbe defendant ?” Answer: “Yes.”

3. “If so, what damage is the plaintiff entitled to recover?” Answer: “$9,996.11.”

Upon tbe verdict, judgment was rendered against tbe defendant, from which it appealed.

The facts are stated in tbe opinion of tbe Court.

II. A. Grady, Garter Dalton and King & Kimball for plaintiff.

Davis & Davis and F. B. Cooper for defendant.

Manning, J.

Tbe amount of lumber destroyed by tbe fire was nearly 700,000 feet. Tbe plaintiff bad manufactured it for market and bad sold it, and its value at tbe place and time of destruction was $14.40 per 1,000 feet. Tbe only seriously controverted question at the trial was whether tbe defendant’s engine was tbe cause of tbe fire. There was upon this question much evidence, both for and against, and it presented simply a question of fact for tbe jury. It has been found adversely to tbe defendant; its determination was doubtful; the jury were tbe sole judges of tbe credibility of tbe witnesses, tbe weight to be given to their testimony and tbe inferences of fact to be drawn therefrom. They were tbe triers of tbe fact, a,nd their finding is necessarily eonclu-*219sive upon us, unless it was induced by evidence improperly admitted or improperly excluded. .His Honor properly placed tbe burden of proof of each issue upon tbe plaintiff, and charged tbe jury tbat, before finding eacb affirmatively, tbey must be satisfied of tbe fact presented by tbe greater weight of tbe evidence. Tbe assignment of error, most earnestly and with great learning and ability, pressed upon our attention, is taken to tbe exclusion of tbe following evidence: J. E. Huey, tbe engineer in charge of tbe engine alleged to have caused tbe fire, was offered by tbe defendant as a witness, and be testified, among other matters, as follows: “Engine bad spark arrester in good condition, as far as. I know. Do not examine unless engine begins to throw sparks. 'Wood sparks will burn better than coal. Wood will ignite farther from smokestack. . . . Had short train and was running about ten miles per hour when we passed tbe mill. With a spark arrester on engine, sparks will escape. If meshes are so small tbat no sparks could go through, train could not run. Saw spark arrester in this engine tbat day or day before. "With a light or heavy wind, sparks could not go in front of train, but to rear. In light wind from south, sparks would go to one side. I claim to be an expert in running coal-burning engines. Have been running coal-burning engines for seven years.” Witness was then asked “if from bis experience and knowledge of tbe facts, as tbey existed when tbe train passed tbe mill, he could form an opinion satisfactory to himself as to bow far a coal cinder or spark would float in tbe air, or be carried by tbe wind, and retain tbe power to ignite trash, shavings or-other combustible matter.” Witness answered, be could. Witness -was then asked bow far, in bis opinion, a spark or cinder from tbe engine, when it passed tbe mill, could be'carried.. Tbe answer to this question was, upon objection, excluded, and defendant excepted.

There was evidence offered showing tbat sparks in considerable volume escaped from tbe smokestack of tbe engine in use on tbe evening tbe plaintiff’s property was destroyed, and were thrown -from thirty-five to forty feet high, and were of tbe size of tbe finger nail of a man; tbat this was observed as the engine passed a shanty near tbe burned lumber; tbat fire bad been communicated by this engine, on tbe day before, to property along tbe track as far as from sixty to one hundred and twenty-five feet; tbat at least three fires bad, on tbat day and tbe day before, originated from sparks from this engine, near plaintiff’s mill; tbat tbe season was dry, and on tbe night in question a wind was blowing; tbat on tbe day of tbe fire plaintiff bad shut down its plant — one boiler at 12 :30 P. M., tbe other at 3 P. M. — and tbe fires had been raked into pits and water poured on them; tbat *220men bad been 'at work around the plant during the afternoon until dark, and no fire'had been seen in the boiler pits or in the lumber; that there was fire in what was called “slab pits,” or trash piles, but there was some difference of opinion as to its condition, some of the witnesses stating that there were only coals in them, others that the fire was blazing; that one of these pits was north and the other west of the place where the fire caught; that the wind was blowing from west of south to east of north; that the fire caught between two piles of lumber, at a distance from the railroad track estimated from 108 feet to 180 feet; that the fire was discovered between one-half hour and one hour after the train passed, at 7 P. M. The grounds upon which this evidence of the witness Huey was excluded are not stated. If he was offered as an expert, then, upon objection, the preliminary question of his qualification as an expert ought to have been found by his Honor, at defendant’s request. No request for a finding by his Honor upon this question appears from the record to have been made. The burden being upon the appellant to show prejudicial error, we cannot assume that his Honor, in this view, foiihd the witness to be an expert, and then excluded the question and answer. In order that the witness might testify as an expert when objection is made, there must be either a finding by the court or an admission or waiver by the adverse party that the witness was so qualified. Neither appears in this record.This being an appellate Court, for the review of errors, the appellant must show, where evidence is excluded, not only that the witness was. found qualified to testify as to the particular-matter, where a special qualification is necessary, but that the evidence excluded is itself competent; and when the evidence admitted is excepted to, this Court must assume that the preliminary fact of qualification was found by the court or admitted or waived, and the appellant must show that the evidence itself is incompetent. Britt v. Railroad, 148 N. C., 37; Rogers on Expert Testimony, p. 8, see. 3; Summerlin v. Railroad, 133 N. C., 550.

The appellant, however, contends that the witness was qualified and the evidence competent as “opinion evidence.” The rules governing the admissibility of this class of evidence and prescribing the qualification of witnesses competent to give it in evidence have been recently and fully considered by this Court in the following cases: Wilkinson v. Dunbar, 149 N. C., 20; Myatt v. Myatt, 149 N. C., 137; State v. Peterson, 149 N. C., 533; State v. Banner, 149 N. C., 519; Britt v. Railroad, 148 N. C., 37; Fire Setter Co. v. Whitehurst, 148 N. C., 446; Taylor v. Security Co., 145 N. C., 385; Davenport v. Railroad, 148 N. C., *221 287; Wade v. Tel. Co., 147 N. C., 219; Whitfield v. Railroad, 147 N. C., 236; Whitaker v. Hamilton, 126 N. C., 465.

Tbe courts are disposed witb greater liberality to admit “opinion evidence” “when tbe witnesses bave bad personal observations of tbe facts and conditions, and from tbeir practical training and experience are in a condition to aid tbe jury to a correct conclusion.” Wilkinson v. Dunbar, supra. Tbe witness Johnson, whose opinion was rejected by bis Honor, upon objection, did not bring himself within tbe rule, for tbe reason that be admitted be bad no practical knowledge of tbe subject; was not at tbe mill when tbe train passed; did not know tbe course and velocity of tbe wind or where tbe fire started. Tbe witness Huey was more nearly qualified’; be was tbe engineer in charge of tbe engine; be bad had' an experience of seven years in running coal-burning engines; was running tbe engine that passed plaintiff’s mill tbe evening of tbe fire; noticed there was some wind blowing; did not know where tbe fire started; bad not examined tbe spark arrester; admitted that if fires were communicated tbe day before by sparks from engine to fields from 80 to 125 feet from right of way, as testified to by witnesses, tbe spark arrester was in bad condition; that it was not bis rule and be did not examine tbe spark arrester unless engine began to throw sparks; did not observe that when train passed shanty near to and occupied by employees of plaintiff, sparks were flying from engine to a height of thirty-five or forty feet, as testified to by one witness; that sparks as large as a man’s finger nail escaped from engine. All facts that were within his personal knowledge or observation bis Honor permitted this witness to narrate, but excluded bis opinion.

It will appear from this summary that tbe witness did not bave that personal observation and knowledge of those facts and conditions required by tbe rule established in tbe cases above cited to make his opinion competent. "Without this knowledge and observation, bis opinion could bave been of no aid to the jury in determining the fact to be tried by them. His opinion would bave been speculative. Tbe jury were to determine not merely tbe probability that tbe fire was communicated to plaintiff’s property by sparks from, defendant’s engine, but to determine tbe fact that this was true by tbe preponderance of proof. An examination of tbe many cases cited to us in tbe able and exhaustive briefs of counsel of tbe defendant convinces us that tbe rule established by tbe decisions of this Court is in harmony witb tbe rule established by tbe well-considered opinions of other courts. As in Krippner v. Biebl, 28 Minn., 139, approved in Davidson v. Railway, 34 Minn., 51, it is held: “Tbe fact being *222material as to bow far a fire in stubble land would be liable to 'jump’ a fire-break, under certain conditions of tbe wind and vegetation, it is competent for a witness, shown to have had actual knowledge of such conditions, and to have had sufficient experience luith such fires, to give his judgment or opinion as to such fact.” The principles governing the admissibility of such evidence are well stated in Rogers on Expert Testimony, pp. 7 and 8, as follows: “(a) It is competent for a witness to state his opinion in evidence when the primary facts on which it is founded are of such a nature that they cannot be adequately reproduced or described to the jury, so as to enable another than the actual observer to form an intelligent conclusion from them. (b) And when the facts upon which the witness is to express his opinion are of such a nature that men in general are capable of comprehending and understanding them. If they are not of that nature, the opinion of ordinary witnesses cannot be received, but the opinions would have to come from men of science and skill.” See, also, section 4, page 9. Many of the cases cited by appellant’s counsel deal with evidence strictly expert and not “opinion evidence,” and are not apposite to the present question. We cannot sustain the sixth and seventh exceptions, which were taken to the exclusion of the opinions of several witnesses, who were present during the fire, that it could not have been caused by sparks from the train engine. 1 Greenleaf Ev. (16th Ed.), sec. 441b; Smaltz v. Boyce, 109 Mich., 382; Hayrie v. Baylor, 18 Tex., 498; Railroad v. Lawler, 40 Neb., 356; 58 N. W., 968; Frazier v. Tupper, 29 Vt., 409; Ferguson v. Habbell, 97 N. Y., 507; Summerlin v. Railroad, 133 N. C., 550; Marks v. Cotton Mills, 135 N. C., 287.

We have carefully examined the other exceptions noted in the record and briefs, and we are unable to discover any error in his Honor’s rulings prejudicial to the defendant. The charge of the learned judge was carefully prepared; the evidence, under proper instructions, was submitted to the jury to determine the facts; they have found them against the defendant, and no error in the trial is manifest to us.

No error.

Brown, J., did not sit.