#### R. C. JEFFRESS v. NORFOLK SOUTHERN RAILROAD COMPANY.

(Filed 6 March, 1912.)

1. Railroads — Negligent Running of Trains — Defective Spark Ar-rester — Contributory Negligence — Combustible Matter.

When a passing locomotive of a defendant railroad company-sets fire to combustible matter left by the plaintiff on his prem-' ises, and is thereby communicated to buildings on his lands and causes damage, the plaintiff’s neglect in permitting the combustible material to remain there will not preclude his recovery, as *216the proximate cause, when the Are owed its origin to a defective spark arrester on the locomotive, or a negligent running thereof. Wyatt v. R. R., 156 N. C., 314, cited and approved.

2. Appeal and Error — Contributory Negligence — Pleadings.

The question of contributory negligence will not be considered on appeal when not pleaded and no issue tendered presenting the question in the trial.

3. Railroads — Negligent Running of Trains — Defective Spark Ar-rester — Ordinary Risks — Former Recovery — Res Adjudicata.

An action to recover damages to plaintiff’s land caused by a spark from defendant railroad company’s .locomotive alleged to have had a defective spark arrester at the time, and to have been negligently run, etc., does not involve an ordinary risk run by the plaintiff as an owner of lands adjoining the right of way, and a recovery had in a former action for risks of that character does not affect plaintiff’s recovery for negligence of the character stated, which is sought in a subsequent action.

4. Railroads — Damages by Fire — Intervening Negligence — Second Fire — Proximate Cause.

When damages are claimed by the owner of lands adjoining the right of way of a railroad company, as caused by a spark from the negligent operation of defendant’s locomotive or the use of a defective spark arrester, the doctrine of proximate cause as laid down in Doggett v. R. R., 78 N. C., 311, has no application, when it appears that plaintiff’s employee had extinguished the fire, and thereafter the damage complained of was caused by sparks from the locomotive setting out another fire.

5. Railroads — Negligence—Approved Appliances — “Modern Appliances” — Definition—Approved and in General Use.

In an action for damages by fire to plaintiff’s land involving the question of the negligence of the defendant railroad company in the operation of its locomotive, or in its being equipped with a defective spark arrester, the use of the words “modern appliances,” in connection with the spiark arrester the defendant was required to use, does not necessarily mean the latest and best appliances, but the use of those “extending from a not very remote past to the present time”; “not antiquated or obsolete” ; and construed with other parts of the charge in this case, Held, not reversible error.

6. Instructions — Construed as a Whole.

When the parts of a charge, construed with the other parts as a whole, lay down correct principles of law applicable to the evidence, no error will be found on appeal.

*2177. Appeal and Error — Instructions—“Contentions”—Objections— Practice.

It is tiie duty of counsel to call to the attention of the court, at the time, any statement of the contentions of the parties which is not supported by the evidence, or it will not be considered on appeal.

8. Railroads — Negligent Running — Defective Spark Arrester — Unusual Sparks — Evidence.

When the defense to an action for damages in setting fire to plaintiff’s land by sparks from a passing locomotive of the defendant with a defective spark arrester is that the spark arrester was a proper one, and did not throw any sparks, evidence is competent in showing that the locomotive was throwing an unusual quantity of sparks, that the locomotive set fire to a garment hanging in a garden nearby, and that the witness had to put her apron over her head to keep the cinders from the locomotive from burning her, about the time of the injury complained of.

9. Appeal and Error — Railroads—Negligent Running — Defective Spark Arrester — Instructions—Harmless Error.

An' instruction in this case to the effect that the jury should answer the first issue, as to defendant’s negligence, “No,” if the spark arrester on defendant’s locomotive, alleged to have set fire to and damaged plaintiff’s lands, was in good condition and the train prudently operated, or if the foul condition on plaintiff’s premises was the proximate cause of his loss, and that the issue could not he answered in plaintiff’s favor unless the jury found that the locomotive was not properly equipped with a spark arrester and was not properly managed and operated, and this was the proximate cause: Held, not reversible error over defendant’s exception, as it was more favorable to it than it was entitled to.

10. Railroads — Fire Damages to Lands — Issues—Measure of Damages — Depreciation—Evidence.

In an action for damages for the destruction of a house' by fire alleged to have been caused by a spark from defendant’s passing locomotive with a defective spark arrester, etc., the measure of damages is, “How much has the land been depreciated in value by the fire?” And evidence is competent which tends to show the size of the house, the quality and cost of the materials used in its construction, the workmanship and other relevant facts, bearing on the question of the decreased value of the land.

*21811. Railroads — Defective Spark Arrester — Inflammable Material— Contributory Negligence — Town Ordinance — Notice—Evidence.

When the negligence of a railroad company in causing damage by fire to lands adjoining its right of way is made to depend solely on the defendant’s failure to provide a proper spark ar-rester, or to operate its train prudently, under such circumstances that the plaintiff would not be barred of a recovery in failing to keep his premises free from combustible matter, an ordinance of a town introduced by the defendant, requiring that plaintiff remove this matter after notice from the town authorities, is irrelevant, but after its introduction the plaintiff may prove that the notice specified in the ordinance had not been given him.

Appeal from Whedbee, J., at December Term, 1911, of Pitt.

This is an action for tbe recovery of damages in tbe sum of $4,315.95, for tbe alleged negligent burning by tbe defendant of plaintiffs prize-bouse, or tobacco stemmery, in Greenville, N. C., on 31 January, 1910. Tbe fire is alleged to bave been caused by sparks from one of tbe defendant’s engines while being operated on Pitt Street. Tbe defendants deny liability. It was admitted, for tbe purposes of tbe trial, that tbe Norfolk Southern Railroad was liable to tbe plaintiff if tbe Norfolk and Southern Railroad Company and its receivers were liable.

Tbe plaintiff owns a lot in Greenville, on Pitt and Tenth streets, fronting 333 feet on Pitt Street and 110 on Tenth Street. Pitt Street runs north and south. The lot is about two blocks from tbe Norfolk Southern depot and 100 to 150 feet from tbe cotton platform. Tbe Norfolk Southern Railroad track runs down tbe middle of Pitt Street, which is 49 feet wide. It is 20 feet from tbe railroad to tbe Jeffress property line, but this distance includes tbe sidewalk. Tbe prize-bouse of plaintiff was built in 1901. It is approximately 60 feet wide and 10S.6 feet long, with an ell added, which is 40 feet by 40 feet. The nearest point of the building is about 45 feet from tbe railroad; tbe boiler-room is 25 feet. Tbe railroad, including track and cross-ties, is 8 feet wide. Tbe building caught fire about 12 o’clock noon and was totally destroyed. Tbe building bad been leased for several years to Skinner & House. The rest of the lot bad been rented out tbe year before. At tbe time of tbe fire tbe vacant part of tbe lot was covered with cornstalks and *219grass. Tbe fire was first discovered burning in the grass on the lot, and in this way reached the building. There was a city ordinance in force at the time, and had been in force for several years, providing that, “Every occupant of a lot on any street shall keep the sidewalk clean and clear of weeds, grass, and other rank vegetation as far as such lot extends. If any rubbish, dirt, ashes, or other thing be placed or left without lawful authority upon such sidewalk or in the gutters or streets adjacent thereto, the occupant of such lot shall remove same. If, after written notice by the chief of police, or street commissioners, requiring him to remove the things prohibited by this ordinance, he shall fail for twenty-four hours to remove the same, he shall be fined $5 for each day thereafter it may so remain.”

In August, 1907, the plaintiff- instituted another action against the Norfolk and Southern Bailroad Company for recovery of damages in the sum of $3,000 to this same lot, alleged to have been caused by the construction of this same railroad track down Pitt Street, alleging, among other elements of damage, “By reason of the frequent passing of the defendant’s trains in such close proximity to plaintiff’s property, plaintiff’s property has become endangered from loss by fire arising from the constant issuing of smoke and sparks from defendant’s engines, and has become annoying to the plaintiff and materially interferes with the operation of plaintiff’s factory.”

This action was tried at March Term, 1911, resulting in a judgment of $50 for the plaintiff, and this judgment was affirmed on appeal by plaintiff .to Supreme Court at Fall Term, 1911.

There was evidence for- the plaintiff tending to show that the defendant’s freight train was passing along Pitt Street-about 11:30 o’clock, and did some shifting on this street; that the engine was emitting sparks and that some of the sparks fell upon the vacant part of the Jeffress lot, or sidewalk, and that shortly thereafter the grass was burning in two places. The grass burned up near to the boiler-room, which was the nearest point to the street, when it was discovered by Archie Lockland, who had charge of the building and had the key to the same. *220He testified tbát be put tbe fire out and went borne. In- about twenty minutes tbe building was on fire. Tbe building burned about 12 o’clock noon. There was also evidence for tbe plaintiff tbat tbe grass caugbt again from a spark from tbe engine, after Lockland bad put it out, and tbat tbis was tbe fire tbat eventually burned tbe factory. Tbe plaintiff’s evidence showed tbat tbe grass caugbt on tbe plaintiff’s lot, or sidewalk, and tbat tbe fire was communicated to tbe building by burning 'grass, tbe plaintiff himself testifying tbat tbe nearest burnt grass to tbe railroad track was within 20 or 15 feet of tbe track. All of tbe evidence tended to show tbat tbe fire was communicated to tbe building by the burning grass, and there was no evidence that it caugbt directly from a spark. Tbe plaintiff’s evidence tended to show tbat tbe building and its contents were worth between $8,500 and $9,000. He collected $4,225 insurance on tbe building and contents.

Tbe evidence of tbe defendant was tbat tbe freight train, No. 30, pulled by Engine No. 115, came into Greenville about 11 o’clock a. m., and left about 11:40; tbat tbe engine was properly equipped with a spark arrester in general and approved use, and tbat tbe netting of tbe spark arrester was in fact smaller and finer than tbe standard, it being 3 boles to 1 inch of space instead of 2% boles to the inch. Tbat tbis rendered tbe danger of sparks escaping much less, on account of tbe fact tbat tbe netting would stop smaller sparks. Tbat it stopped practically all sparks and would choke with sparks and cause tbe engineer to stop at s'tations and knock them out. Tbat tbe spark arrester was'in good condition on tbat date. There was evidence of tbe good condition of tbe spark arrester for a number of days both prior and subsequent to tbe fire, and tbat tbe engine was being run carefully and properly by a competent engineer. There was evidence for tbe defendant tbat tbe building and personal property were worth less than the amounts claimed by tbe plaintiff. There was other evidence for tbe plaintiff.

Tbe defendant does not plead contributory negligence, and tbe issues an'd tbe responses thereto are as follows:

1. Was tbe property of tbe plaintiff injured by tbe negligence of tbe defendant, as alleged in tbe complaint ? Answer: Yes.

*2212. If so, wbat damage, if any, in excess of tbe $4,225 fire insurance collected by tbe plaintiff, is plaintiff entitled to recover of defendant? Answer: $3,275.

There was a judgment in accordance with tbe verdict, and tbe defendant appealed.

F. G. James & Son and Harry Shiovner for plaintiff.

Bouse •& Land for defendant.

AlleN, J.

Tbe exceptions appearing in tbe record present for our consideration tbe following contentions made by tbe defendant:

(1) Tbat tbe plaintiff was negligent in permitting combustible matter to remain on bis lot near tbe track of tbe defendant, and tbat this was tbe proximate cause of tbe injury to bis property. •

(2) Tbat if, ordinarily, it would not be negligence in tbe plaintiff to permit combustible matter to remain on bis lot, a higher duty should be imposed on him in this case, because be bad recovered judgment against tbe defendant in another action on account of hazard to this property by tbe operation of defendant’s trains, and bad been thereby compensated for ordinary risks.

(3) Tbat it being' in evidence tbat tbe fire, after its origin, was under tbe control of an employee of tbe plaintiff, tbe defendant, although negligent in setting out tbe fire, would not be liable for tbe consequences which followed.

(4) Tbat bis Honor erroneously imposed tbe duty on tbe defendant of equipping its engine with a modern spark arrester.

(5) Tbat bis Honor stated as a contention of tbe plaintiff tbat tbe engine emitted an unusual quantity of sparks, when there was no evidence to support tbe contention.

(6) Tbat bis Honor, in a part of bis charge, made tbe liability of tbe defendant depend upon whether tbe plaintiff was negligent in permitting bis lot to become and remain in a foul condition.

(7) Tbat bis Honor erroneously charged tbe jury tbat tbe measure of damage for burning tbe building was tbe difference in tbe value of tbe land before and after tbe fire.

*222(8) That Ms Honor erroneously permitted the tenant of tbe plaintiff to testify that he had received no notice, under the ordinance in evidence, to remove trash, etc., from the sidewalk.

(1) This contention of the defendant seems to be fully met by the decision in Wyatt v. R. R., 156 N. C., 314, in which it was held that “an owner of land has a right to use it in the ordinary and usual way, and is not bound to remove dry grass, weeds, leaves, or other combustible material from his land adjoining a railroad right of way, in anticipation of probable negligence on the part of the railroad company, and a failure to perform such acts will not make him guilty of contributory negligence so as to preclude a recovery for damages caused by a .fire originating through the railroad company’s negligence.” If the rule was otherwise, the defendant has not pleaded contributory negligence, and no issue was tendered presenting this question; and this objection would also be applicable to the next contention of the defendant.

(2) The second proposition insisted upon may be admitted, and the liability of the defendant would not be affected, because negligence is not an ordinary risk, and his Honor told the jury in clear and direct terms that the plaintiff could not recover if the engine was properly equipped with a spark arrester and was prudently operated by a competent engineer. He imposed the burden on the plaintiff of proving negligence, and instructed the jury that they were confined to the consideration of the two acts of negligence alleged — the defective spark arrester and the negligent operation of the train — and if the defendant was negligent in these respects, as the jury has found, the prior negligent conduct of the plaintiff, if any, would not prevent a recovery. The question is analogous to one considered in Arthur v. Henry, 157 N. C., 393, where it was- held that consent given by the plaintiff to the defendant to blast for rock near Ms home would not prevent a recovery for injuries resulting from negligence in the operations.

(3) This position finds support in Doggett v. R. R., 78 N. C., 311, but it is not necessary for us to consider the facts and the reasoning in that case, because it appears from the evidence in this that two fires were set out by the engine of the defendant, *223and that it was the first fire which was under the control of an employee of the plaintiff, and that after he extinguished it and left the premises, the property of the plaintiff was destroyed by the second fire.

(4) When the charge of his Honor is considered as a whole, which it is our duty to do, the criticism of it, as presented by the fourth, fifth, and sixth contentions of the defendant, are not, in our opinion, sustained by the record.

It is true that the word “modern” is used in connection with the appliances which the defendant was required to furnish, but “modern appliances” do not necessarily mean “the latest and best appliances,” which the defendant insists was the effect of the charge, and could not have been so understood by the jury.

The Century Dictionary defines “modern” as “pertaining to the present era, or to a period extending from a not very remote past to the passing time; not ancient or remote in time; not antiquated or obsolete,” and says by way of illustration, that Modern History comprises the history of the world since the fall of the Eoman Empire or the close of the Middle Ages, and that modern fashions, tastes, inventions, and science generally, refer to the comparatively brief period of from one to three or four generations.

His Honor told the jury that it was the duty of the defendant “to have its engines properly equipped with such appliances for the arresting of sparks as are in general and approved use — not such as will prevent any spark from escaping, but such appliances as are in general and common use, and that will subserve the purpose intended,” and again, “If you find by the greater weight of the evidence the spark which set fire to the grass, and which fire was communicated to and destroyed the building, was caused by the failure of the defendant to properly equip its engine with a spark arrester that was modem and in common use, or they failed to properly operate or manage it, it would be negligence on the part of the defendant company.”

If his Honor stated a contention of the parties not supported by evidence, it was the duty of counsel.to call it to his attention; but one of the witnesses testified that a shirt hanging in her garden was set on fire from the train; that as she approached the railroad crossing she had to put her apron over her head to *224keep the cinders from burning her, and that about that time sparks from the train set fire to the grass on the plaintiff’s lot, which is, we think, some evidence that the quantity of sparks was unusual, and particularly so when considered in connection with the evidence of the conductor of the defendant, that the spark arrester was in good condition and that the engine did not throw any sparks.

The part of the charge which the defendant thinks made the liability of the defendant depend upon the negligence of the plaintiff in permitting his lot to remain in a foul condition is where his Honor says: “There is another aspect to this case which you will take into consideration. It is for you to say what the proximate cause was. If you find as a fact that the engine was properly equipped, properly managed and operated, and sparks were emitted that set fire to property off the right of way; that is to say, if sparks were emitted from the engine that was properly equipped, managed and operated, and fell upon the land of the plaintiff off the right of way, there would not be any breach of duty on the part of the defendant because his property was burned, and the defendant would not be responsible; if you should also find that the plaintiff allowed his premises to become so foul with combustible matter that no reasonably prudent man would allow it to stay in that condition near a railroad, and that the cause of the injury was not the negligence of the defendant, but the proximate cause was the negligent act of the plaintiff in allowing his lot to remain in a foul condition; and if you shall find from all the facts and circumstances and by the greater weight of the evidence that it was not the act of a reasonably prudent man having regard to the rights of others to permit the condition in his lot, and that it was a case of negligence on his part, then that would be a bar to recovery, and you would answer the first issue No.’ If, however, you find that the engine was not equipped with modern, proper spark arrester, and that it was not properly managed and operated, and that the proximate cause of the injury to the plaintiff’s property was the negligence of the defendant to provide proper appliances and equipment to the engine, then it is your duty to answer that first issue ‘Yes.’ ”

*225This was, in effect, instructing the jury to answer the first issue “No” if the spark arrester was in good condition and the train prudently operated, or if the foul condition of the lot of the plaintiff was the proximate cause of his loss, and that the issue could not be answered in favor of the plaintiff unless the jury found that the engine was not properly equipped with a spark arrester and was not properly managed and operated, and that this was the proximate cause, which was more favorable to the defendant than it was entitled to.

(7) The‘measure of damage was stated correctly in the charge. Williams v. L. Co., 154 N. C., 310. The house destroyed by the fire was a part of the land, and the injury was to the freehold. The inquiry, therefore, for the jury was, “How much has the land been depreciated in value by the fire?” which is but another way of ascertaining the difference in the value of the land before and after the fire.

It was, of course, competent to introduce evidence as to the .size of the house, the quality and cost of the material used in its construction, 'the workmanship, and other relevant facts, as bearing on the question of the decrease in value of the land.

(8) As the liability of the defendant was made to depend solely upon failure to provide a proper spark arrester, or to operate its train prudently, if these facts were found to exist, the prior negligence of the plaintiff, if any, would not have prevented a recovery, and in this view the ordinance introduced by the defendant, and the evidence of the tenant of the plaintiff that he had not been notified to remove trash from the sidewalk, would be irrelevant and harmless; but as the ordinance was admitted requiring no.tice to be given under certain conditions, it was not improper to permit the plaintiff to prove that the notice had not been given.

Upon a review of the whole record, we find

No error.