#### N. R. DEPPE v. ATLANTIC COAST LINE RAILROAD COMPANY.

(Filed 9 March, 1910.)

1. Motion to Nonsuit — Evidence, How Considered.

Upon a motion to nonsuit upon the evidence, the evidence must be construed in the view most favorable to the plaintiff, and every fact which it tends to prove, and which is an essential ingredient of the cause of action must be regarded as established.

2. Negligence — Railroads — Sparks from Engine — ‘Evidence — Origin — Primal Cause. .

When, in an action for damages for the destruction of plaintiff’s lumber dry-kiln by fire alleged to have been caused in the daytime, by a spark from defendant railroad company’s locomotive, the plaintiff has introduced evidence of the condition and *80surrounding of the kiln, tending to exclude the possibility of the fire originating therein, and there is evidence that a short time before the fire was discovered the locomotive was shifting cars near the kiln, that it had enveloped the kiln in smoke, that the fire was discovered near a ventilator in the top of the kiln, it is sufficient to take the case to the jury upon the question as to whether the primal cause of the fire was a spark from the locomotive entering the kiln through the ventilator; and it. was unnecessary to prove directly by eye-witnesses that such was the cause.

3. Negligence — Railroads—Evidence—Spark from Engine — Proper Equipment — Rebuttal.

Where there is competent evidence tó show that a fire to plaintiff’s lumber dry-kiln originated from a spark from defendant’s locomotive, it is sufficient to charge the latter with negligence; and the burden is upon it to show that it had used all the precautions for confining sparks or cinders which are approved and in general use, and that the appliances furnished were used by a competent and skilled engineer in a careful way.

Appeal from Guión, J., at November Term, 1909, of CRAVEN.

At the close of plaintiff’s evidence the defendant moved for judgment as upon a nonsuit. His Honor sustained tbe motion, to which, ruling plaintiff excepted and appealed to this Court. The facts, as established by the evidence, are stated in the opinion of the Court.

D. L. Ward and D. E. Henderson for plaintiff.

Moore & Bunn for defendant.

Manning, J.

This case being presented to us -upon motion. for judgment, under the statute, made by the defendant at the conclusion of plaintiff’s evidence, the rule established by this Court for the consideration of the evidence is thus stated: “The evidence must be construed in the view most favorable to the plaintiff, and every fact which it tends to prove and which is an essential ingredient of the cause of action must be established, as the jury, if the case had been submitted to them, might have found those facts from the testimony.” Cotton v. R. R., 149 N. C., 227; Brittain v. Westhall, 135 N. C., 492; Freeman v. Brown, 151 N. C., 111.

The plaintiff sues to recover damages for the negligent destruction, by fire, of two dry-kilns, a large lot of lumber and a sawmill plant and appurtenances, located at Deppe, in Onslow County, and near a track of the. defendant. The fire occurred on the morning of 15 August, 1908. A freight train operated by the defendant stopped, on that morning, at Deppe and the engine was, for fifteen or twenty minutes, shifting ears backwards and forwards ■ on the sidetrack running to plaintiff’s *81plant; tbat tbe kilns were built near tbe sidetrack, 60 feet from it; they lay lengthwise along tbe track, and in tbe green end of tbe kiln, i. tbe end tbrougb wbicb tbe trucks full of lumber are. ran in to tbe kiln; at tbe top there was a ventilator, 4 or 4% by 8 feet, opening back about 6 or I feet high; tbe kilns were each about 20 feet wide, and were used for drying-out lumber; tbey were heated by steam conducted in iron pipes from a boiler 156 feet away; tbe pipes, after reaching tbe kilns, were laid on iron pipes in the bottom of tbe kilns and tbe ventilators were used for tbe discharge of tbe hot air moistened by tbe water from tbe lumber; tbe kilns were tightly built, and no fire was in or about them; from tbe iron pipes to tbe place where tbe fire was discovered in tbe top of tbe kilns was 12 to 14 feet. When tbe fire was discovered near tbe top of tbe kiln and near tbe ventilator, between tbe ceiling and tbe roof, no fire was discovered around tbe pipes or nearer them than the ventilator. The' ventilators were open. Tbe wind was blowing from tbe railroad track towards tbe kilns, and tbey were enveloped in tbe black smoke of tbe shifting engine while there. The boiler, which furnished tbe steam beat to tbe kiln, was 156 feet away from tbe kiln, and tbe wind was blowing its smoke and cinders from its smokestack away from tbe kilns. Only one of tbe two kilns was heated tbe morning of tbe fire. The mill was idle and no fire in its boiler. It was in evidence tbat it was impossible for tbe fire, occurring in tbe part of tbe kiln, where it was when first seen, to have been caused by tbe steam-heated pipes. Tbe time between tbe departure of tbe defendant’s train and tbe breaking-out of tbe fire was estimated by tbe witnesses to have been from three-quarters of an hour to an hour and three-quarters ; some of them described it as a short time. Tbe witnesses explained in detail tbe construction of the kilns, tbe location in them of the steam pipes, and a map of tbe premises was used, showing tbe relative location and distances of tbe sawmill, lumber sbeds, kilns, boiler and railroad tracks.

Tbe first question, therefore, presented is, “Was tbe defendant’s engine the origin of tbe fire?” Does tbe evidence, construed in tbe view most favorable to tbe plaintiff, tend to prove this primal fact?

Tbe defendant contends tbat no witness testified tbat be saw sparks emitted by tbe engine or tbat be saw tbe sparks from tbe defendant’s engine ignite tbe plaintiff’s lumber kiln. In considering this contention, it must be remembered tbat this fire occurred in tbe daytime — in tbe brilliancy of a summer sun, rendering sparks emitted by an engine incapable of being seen by tbe human eye. Tbat no one saw tbe sparks ignite tbe burned property was tbe fact in McMillan v. R. R., 126 N. C., *82 725, and Williams v. R. R., 140 N. C., 623; in which latter case tbis Court comments upon a similar contention: “No one testified that be saw tbe sparks fall from tbe engine upon tbe right of way. It is rarely tbat tbis can- be shown by eyewitnesses, for it would be put out by tbe observer. But here tbe fire was seen on tbe right of way, it burnt along tbe track between the ditch and tbe ends of tbe ties, and tbence bad gone into tbe woods. Tbe wind was blowing from tbe northwest across tbe track, tbe fire being on tbe south side. Two witnesses testified that they first saw tbe smoke about thirty minutes after tbe defendant's engine passed. How long before tbat tbe fire began, no one knew, but there whs no fire before tbe engine passed. Tbe other witnesses first saw tbe fire after a longer interval, and there was evidence tbe fire burnt both ways. These were matters for tbe jury.” The evidence offered in tbe present case tends to fix tbe origin of tbe fire upon tbe defendant’s engine by exclusion of every other known cause. There was no fire before tbe defendant’s engine began shifting cars on tbe track; there was no fire about the kiln or within 156 feet, more than twice tbe distance of defendant’s engine; tbat smoke from tbe engine entirely enveloped tbe kiln; tbe only opening in tbe kiln was tbe ventilator — the place at which, or near which, tbe fire was discovered; it was impossible for tbe fire to. have originated from the steam pipes; tbe wind was blowing tbe smoke from plaintiff’s boiler away from tbe kiln, and was blowing tbe dense smoke from defendant’s engine on tbe kiln, until it was enveloped.

"We think tbe evidence ought to have been submitted to the jury, as tbe triers of tbe fact, to determine tbe primal fact, if tbe defendant’s engine was the cause of tbe fire. As tbe evidence tended to prove tbis fact, we must, for tbe purposes of tbis motion, assume tbat tbis fact was established, and tbat tbe jury would have so found.

In considering the origin of tbe fire, it is immaterial whether the fire .caught on or off tbe right of way. Tbe place of ignition is important on tbe second question.

Tbe second question presented is, Could tbe jury find from tbis primal fact tbat the plaintiff’s property was negligently burned by tbe defendant? In 2 Sher. and Redf. on Negligence, sec. 676, tbe learned authors say: “Tbe decided weight of authority and of reason is in favor of bolding tbat, tbe origin of tbe fire being fixed upon tbe railroad company, it is presumptively chargeable with negligence, and must assume tbe burden of 'proving tbat it bad used all those precautions for confining sparks or cinders (as tbe case may be) which have already been mentioned as necessary. Tbis is tbe common law of England, *83and the same rule bas been followed in New York, Maryland, North Carolina, South Carolina, Illinois, Wisconsin, Missouri, Nebraska and Texas.” Ellis v. R. R., 24 N. C., 138; Mfg. Co. v. R. R., 122 N. C., 881; Hosiery Co. v. R. R., 131 N. C., 238; Lumber Co. v. R. R., 143 N. C., 324.

If the defendant can show at the trial that it “had used all those precautions for confining sparks or cinders” which are approved and in general use, and the jury shall so find the fact, the trial judge will instruct them to answer the issue of negligence “No,” provided the precautions were used by a competent and skilled engineer, in á careful way. Rule 1 in Williams v. R. R., 140 N. C., 623; Knott v. R. R., 142 N. C., 238.

In this case, we assume the kilns were not on.the right of way of defendant, and it would seem that the case falls under Rule 1 of the summary of the rules of negligence, stated with such clearness by the Chief Justice in Williams v. R. R., 140 N. C., 623. We, therefore, think his Honor erred in sustaining the motion to nonsuit, and this judgment is reversed and there will be a

New trial.