#### W. C. KORNEGAY v. ATLANTIC COAST LINE RAILROAD COMPANY.

(Filed 22 March, 1911.)

1. Railroads — Negligence—Burning—Evidence—Nonsuit.

In an action to recover damages for the destruction of plaintiff’s residence, alleged to have been caused by fire communicated to the house, which was situated near the defendant’s right of way, by sparks from defendant’s passing engine, there was evidence tending to show that no fire was within the house which could have caused the damage; that plaintiff and his family, between midnight and 2 o’clock A. M., stood on his front porch and watched the defendant’s train pass, and .the engine was throwing sparks from its smokestack in great quantities, with the wind blowing from that direction toward the house, which was enveloped by sparks; that soon after plaintiff and his family retired he was awakened by noises which proved to come from his burning house, which was completely destroyed, and that day broke about two hours after the fire was over. There was evidence in defendant’s behalf tending to show that its engine was equipped with the best approved type of spark arrester in general use, and that no sparks were emitted from its engine: Held, approving the rule that the evidence must be construed in the most favorable light to the plaintiff, when a motion to non-suit is made, that the plaintiff had made out a prima facie case, and was entitled to go to the jury upon the issue as to defendant’s negligence.

*3902. Instructions, How Construed — Correct as a Whole.

The charge of the court to the jury must be considered as a whole and. not disconnectedly, and each instruction must be construed with reference to what preceded and followed it; and when the charge as thus viewed is correct, detached portions thereof, even in themselves subject to criticism, do not constitute reversible error.

3. Same — Railroads—Negligence—Burning—Evidence.

In an action against a railroad company to recover damages for burning the plaintiff’s house, alleged to have been negligently caused by sparks from the defendant’s engine, the judge correctly instructed the jury, in substance, that if the house caught fire from sparks which were emitted from the engine, it made out a prima facie case of negligence, hut they would not find against the defendant upon the issue if they concluded, after consideration of all the proof, that the defendant’s engine had a spark arrester, not the best, but of approved make and in general use, and that the train was carefully handled, so that there was no negligence on the defendant’s part.

4. Evidence — Irrelevant Questions — Harmless Error.

During the examination of the plaintiff in this case an inquiry by the court, “You had a pretty big piazza, didn’t you?” was held irrelevant and harmless, the action being to recover damages of the defendant railroad company for negligently setting fire to and destroying plaintiff’s house by sparks from its locomotive.

5. Same — Railroads—Burning.

On the question of defendant’s negligence in permitting sparks from its engine to set fire to and destroy plaintiff’s house, the defendant’s counsel asked a witness where the engineer was when he last heard from him, and the question was excluded: Held, the inquiry was irrelevant, no other evidence appearing to make it'competent.

Appeal from Cooke, J., at October Term, 1910, of WayNe.

Action to recover damages for setting fire to plaintiff’s bouse and destroying tbe same and a part of its contents. So much of tbe plaintiff’s own testimony as is necessary to show tbe origin of tbe fire was as follows:

“On 23 October, 1901, Jbbn IT. Sparks’ show train was pulling out of Mount Olive to go to Clinton. I was out on my piazza with my family, viewing tbe train as it passed our *391bouse. Sparks in great quantities were being emitted from tbe smokestack of tbe engine pulling that train of cars. My bouse was situated on tbe east side of tbe railroad, and tbe course tbe wind was blowing was from tbe northwest, coming directly across tbe railroad towards my bouse and conveying tbe sparks in great quantities over tbe bouse and at random, it seemed to me, everywhere else. That was somewhere between 12 and 2- o’clock at night. We went to bed as soon as tbe train passed. I went to sleep; my wife roused me and said there was a noise somewhere. On being aroused, I beard a noise of something breaking or something falling; I then went out in tbe ball to get my gun, but did not get it; on getting in tbe ball and looking through tbe transom over tbe front door it looked very red, but I still beard tbe noise which seemed to be overhead; I then opened tbe front door facing the railroad, and I saw tbe light from fire. I rushed out on tbe railroad right of way. Tbe fire was burning on tbe roof of my bouse, and it was falling in. I rushed in and told my wife tbe fire was burning tbe roof of tbe bouse, to get up at once, which she did. There was no evidence of fire anywhere on tbe inside of tbe bouse, either downstairs or upstairs. There were two double chimneys to tbe bouse, containing six fireplaces, but there bad been no fire in tbe bouse for two days. Tbe kitchen was at tbe rear of tbe bouse, a single room 10 x 12 feet and 9 foot pitch, and we bad not cooked in tbe stove nor bad any fire in tbe kitchen since 6 that morning. We bad spent tbe entire day in tbe show grounds and in tbe shows. Tbe-bouse was consumed and (nearly) all tbe furniture. . . . There was no fire in tbe kitchen when I first discovered it. Tbe fire was confined to tbe front part of tbe roof of tbe main bouse. . . . I bad not been asleep very long when fire broke out. Day broke about two hours after tbe fire was over. It appeared to be between 1 and 3 o’clock when fire was first discovered.”

There was other evidence tending to show that tbe fire was caused by sparks emitted from tbe smokestack of tbe defendant’s locomotive engine. There also was evidence, on tbe part of tbe defendant, that tbe engine bad a spark arrester in good condition and of tbe best approved type in common or general *392use, and that no sparks were emitted from the engine as it passed near the plaintiff’s house. The jury returned a verdict for the plaintiff, and from the judgment thereon the defendant appealed. ,

J. D. Langston and W. T. Dortch for plaintiff.

W. 0. Monroe for defendant.

Walker, J.,

after stating the case: The defendant’s motion for a nonsuit was properly overruled. There was sufficient evidence tending to show that the fire was caused by sparks emitted from .the defendant’s engine. The plaintiff’s own testimony, and there was more of the same kind, warranted the jury in finding, as a fact, that the house was set on fire in that way. If we construe the evidence in the most favorable light for the plaintiff, giving him the benefit of all legitimate and reasonable inferences to be drawn therefrom, as we are required to do (Cotton v. R. R., 149 N. C., 227; Freeman v. Brown, 151 N. C., 111), the evidence is quite as strong as that which was held sufficient in Deppe v. R. R., 152 N. C., 80, a case much like this one in its facts and circumstances.

When it is shown that the fire originated from sparks which came from the defendant’s engine, the plaintiff made out a prima facie case, entitling him to have the issue as to negligence submitted to the jury, and they were justified in finding negligence unless they were satisfied, upon all the'evidence in the case, that, in fact, there was no negligence, but that the defendant’s engine was equipped with a proper spark arrester and had been operated in a careful or prudent manner. Williams v. R. R., 140 N. C., 623; Cox v. R. R., 149 N. C., 117.

The charge of the court, when properly considered as a whole, was in accordance with the principles settled in the cases just cited. ¥e are not permitted to select detached portions of the charge, even if in themselves subject to criticism, and assign errors as to them, when, if considered with the other portions of the charge, they are readily explained and the charge in its entirety appears to be correct. Each portion of the charge must be construed with reference to what precedes *393and follows it. Tbis rule is so plainly fair and just, both to tbe judge and tbe parties, as to have commended itself to tbe courts, and it is tbe only reasonable one to adopt. S. v. Exum, 138 N. C., 599; S. v. Lewis (at this term). In S. v. Exum, supra, Justice Hoke, approving tbe statement of tbe rule to be found in Thompson on Trials, sec. 2407, says: “It (the charge) is to be considered as a whole in tbe same connected way in which it was given, and upon tbe presumption that tbe jury did not overlook any portion of it. If, when so construed, it presents tbe law fairly and correctly to tbe jury, it will afford no ground for reversing tbe judgment, though some of tbe expressions, when standing alone, might be regarded as erroneous.” Apply tbis rule to tbe charge of tbe court, and we think it will be gathered therefrom that bis Honor substantially told the jury that if tbe bouse caught fire from sparks which were emitted from tbe defendant’s engine, it made out a prima facie case of negligence; but they would not find against tbe defendant upon tbe issue if they concluded, after consideration of all tbe proof, that tbe defendant’s engine bad a spark arrester — not tbe best, but of approved make and in general use — and that tbe train was carefully bandied, so that there was no negligence on tbe defendant’s part. Tbe court did not say that tbe mere emission of sparks, even if they started tbe conflagration, would establish tbe liability of tbe defendant for tbe consequent damage, but the careless emission of sparks, whether they proceeded from a defective spark arrester or from tbe unskillful or negligent operation of tbe engine. Deppe v. R. R., 152 N. C., at page 83.

Tbe plaintiff testified that be and bis wife were sitting on tbe piazza of bis bouse when tbe train passed. He was describing tbe piazza, when tbe court inquired: “You bad a pretty big piazza, didn’t you?” No objection was made to tbe remark at tbe time, but defendant afterwards assigned it as error. Tbe plaintiff contends that if tbe remark was injurious to tbe defendant, tbe objection came too late, and cites Alley v. Howell, 141 N. C., 113; S. v. Tyson, 133 N. C., 692; but we need not consider tbis contention, as we are of tbe opinion that the *394inquiry, if not proper, was harmless. It was not relevant to tire controversy in any way. What could the size or dimensions of the porch have to do with' the negligence of the defendant or the question being tried ? It was not prejudicial in any view that we can take of the case. The defendant’s counsel asked a witness where the engineer was when he last heard from him, and the question was excluded. It does not' appear that any effort had been made to procure the attendance of the engineer as a witness, by issuing a subpoena for him or by taking his deposition. The inquiry as to his whereabouts was, therefore, irrelevant. For all that appears, the defendant could easily have had the benefit of the engineer’s testimony if wanted. It was not proposed to show that he was dead, or that the defendant could not reach him with process or take his deposition. If that was the object, it should have been disclosed to the court, as otherwise it could not be material where he was.

We find no error in the case.

No error.