#### W. B. HARDY v. HINES BROTHERS LUMBER COMPANY.

(Filed 25 September, 1912.)

1. Railroads — Damage by Fire — Spark Arrester — Foul Right of Way —Negligence—Continuity of Acts — Evidence.

In an action to recover damages against a railroad company for negligently burning over the lands of the plaintiff, evidence is sufficient to be submitted to the jury which tends to show that the defendant’s passing locomotive had a defective spark ar-rester, that its right of way was, at that iflace, in a foul and inflammable condition, and that a live spark from the locomotive was the cause of the fire, which was communicated continuously to the plaintiff’s land over the lands of others.

2. Railroads — Damages by Fire — Unusual Results — Negligence— Presumptions — Peculiar Knowledge — Burden of Proof.

In an action for damages against a railroad company for the burning over of the plaintiff’s lands, caused by a spark from a passing locomotive,' negligence is deducible from evidence tending to show that the fire would not have occurred if the locomotive had been properly equipped and run over a right of way in a proper condition; and the burden is upon the defendant to show the exercise of reasonable care in the operation of the locomotive, as it was under the defendant’s control, and its condition was a matter peculiarly within its knowledge.

3. Railroads — Damages by Fire — Spark Arrester — Foul Right of Way — Negligence—Two Causes — Evidence—Questions for Jury.

When in an action for damages against a railroad company *114for the burning over of the plaintiff’s land caused by a spark from a passing locomotive, there is evidence that the fire originated from a live spark that fell from the locomotive, that the track and right of way were foul with dry stubble, it is sufficient for the jury to find, upon the issue of negligence, that the fire occurred either on a foul right of way; or that it was caused by a defective locomotive, for it does not require two acts of negligence to make a wrong.

4. Negligence — Damages—Proximate Cause — Independent Cause— Continuity — Result—Questions for Jury.

The proximate cause of damages negligently inflicted is that which, in a natural and continuous sequence, unbroken by any new, independent cause, produces the event, and without which it would not have occurred, and it is a question for the jury when the evidence is conflicting.

5. Same — Railroads—Demages by Fire.

In this action for the negligent burning over of the plaintiff’s land by a spark from defendant railroad company’s passing locomotive, there was evidence that the fire burnt over other lands to those of the plaintiff, destroying a'small portion of his timber, and • under the combined efforts of his neighbors and himself was thought to have been extinguished, but “sprang up” again after about twelve days and spread to other timber of the plaintiff and damaged if: Held, (1) upon the question of proximate cause, it was for the jury to decide, under proper instructions from the court, whether the second fire was a' continuation of the first; (2) that the evidence as to distance, the lapse of time, and the efforts to extinguish the fire is competent upon the question of whether the second fire was the proximate cause of the first one, depending upon the unbroken continuity of their sequence, operating together, either successively or concurrently, each being- a contributing cause to the final result. Doggett v. R. R., 78 N. C., 306, cited and distinguished.

6. Railroads — Damages by Fire — Contributory Negligence — Pleadings.

In an action for damages to plaintiff’s lands from a fire alleged to have negligently been caused by a spark from a passing locomotive of defendant, it is necessary for the defendant ,to, allege, if the defense is available, that the injury thereto was proximately caused, by the intervening and independent negligence of the plaintiff in having failed to put it out.

*1157. Railroads — Damages by Fire — Contributory Negligence — Anticipated Consequences — Instructions—Special Requests — Objections and Exceptions — Appeal and Error.

While in this action to recover damages for the alleged negligent setting fire to and burning over the plaintiff’s land, caused by a spark from defendant railroad company’s passing locomotive, the court may correctly have instructed the jury to find whether, in the exercise of care, the defendant could reasonably have foreseen that the injury complained of would be the natural and probable consequence of its negligence, the fire having been communicated to plaintiff’s land from burning over the intervening lands of others, objection should have been taken by requesting proper prayers embracing these matters and the refusal of his Honor to give them.

8. Railroads — Damage by Fire — Right of Way — Evidence—Questions for Jury.

Testimony of a witness that the fire alleged to have caused the damages to plaintiff’s lands through the defendant’s negligence in the operation of its train over a foul or inflammable right of way, was seen on defendant’s right of way and track, is evidence sufficient upon the question as to whether tlie defendant owned the right of way where the fire occurred.

Appeal by defendant from WheJbee, J., at May Term, 1912, Of GREENE.

The facts- are sufficiently stated in the opinion of the Court by Mr. Justice Walker.

Langston <& Allen andI J. Q-. Anderson for plaintiff.

Bouse & Land, Loftin & Dawson, and J. P. Frizzelle for defendant.

WalKEr, J.

These actions were brought by W. B. Hardy and B. T. Hardy against the defendant to recover damages for negligently burning their timber. The- allegations as to the burning, they being substantially the same in the two cases, are that the defendant’s locomotive engine set fire to combustible material on its track and right of way, which--was covered with dry leaves, pine straw,-and woods mould, and- in a very foul condition, and that the fire spread to the adjoining land, burning over a- considerable area. That an effort was made -to extinguish the flames, plaintiff taking some part in it, but that some *116days afterwards tbe fire, which, had been left smoldering in the woods, broke out afresh, extending' to the lands of plaintiffs and burning some of their timber. The cases, by consent of all parties, or, rather, without objection, were consolidated by order of the court and tried together, the facts being practically alike.

The lire, as testified by at least two of plaintiffs’ witnesses, L. O. Tumage and W. 0. Carlyle, was first seen on the track and right of way, just after the train had passed, and there was evidence that the smokestack of the engine was defectively constructed, so that large and live sparks could be emitted therefrom, and that the same engine had before caused fires along the track. Tt is true that there was evidence to the effect that the engine was properly constructed and supplied with an efficient spark arrester and a good ash-pan, save when bad wood was used, but the facts we have stated were fully deducible from some of the evidence, by the' jury, and they seem, under a perfectly correct charge, to have accepted them as proven to their satisfaction.

It cannot be disputed that there was evidence sufficient to establish the charge of negligence in either of two aspects, a defective engine and a foul and dangerous track and right of way, either of which would constitute actionable negligence if it caused the fire in the beginning and was the proximate cause of the damage.

"We said recently in Kornegay v. R. R., 154 N. C., 389: “When it is shown that the fire originated from sparks which came from the defendant’s engine, the plaintiff makes 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 (or ash-pan, and otherwise to prevent the emission of sparks or fire) and had been operated in a careful or prudent manner.” This was but a summary of what had been so often decided in former cases. Williams v. R. R., 140 N. C., 623; Craft v. Tim *117 ber Co., 132 N. C., 151; Knott v. R. R., 142 N. C., 238; Cox v. R. R., 149 N. C., 117; Deppe v. R. R., 152 N. C., 79; Currie v. R. R., 156 N. C., 419.

We early stated the proposition, wbicb seems to be a clear logical syllogism, that “When the plaintiff shows damage resulting from the act of the defendant, which act, with the exercise of proper care, does not ordinarily produce damage, he makes out a prima facie case of negligence which cannot be repelled but by proof of care, or some extraordinary accident which makes care useless.” Ellis v. R. R., 24 N. C., 138; Chaffin v. Lawrence, 50 N. C., 179; Aycock v. R. R., 89 N. C., 321; Haynes v. Gas Co., 114 N. C., 203, and more recently in Mizzell v. Manufacturing Co., 159 N. C., 265.

The rule may.be justified, not only on the ground that negligence is a fair and reasonable deduction from the fact of casting the spark from the engine, as ordinarily, when care is exercised, such a result does not follow, but for the further reason that the proof of care can more easily be produced by the defendant, who has control of the engine and should know its true condition, than by the plaintiff, who may be ignorant of it. Aycock v. R. R., supra. We do not say that there is no exception to or qualification of the rule, but it applies in this ease, and that is sufficient for our purpose.

Referring to this subject in Deppe v. R. R., 152 N. C., at p. 82, Justice Manning thus states the rule applicable to the state of facts here presented: “In considering the origin of the fire, it is immaterial whether the fire caught on or off the right of way. The place of ignition is important on the second question. The second question presented is, Gould the jury find from this primal fact that the plaintiff’s property was negligently burned by the defendant? In Shearman and Redfield on Negligence, sec. 676, the learned authors say: ‘The decided weight of authority and of reason is in favor of holding that, the origin of the fire being fixed upon the railroad company, it is presumptively chargeable with negligence, and must assume the burden of proving that it had used all those precautions for confining sparks or cinders (as the case may be) which have already been mentioned as necessary.’ ” He adds that this is *118tbe common law of England, and bas been followed in many States, several of wbicb be names, and be cites tbe following-eases decided by tbis Court as sustaining it: Ellis v. R. R., supra; Manufacturing 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. Tbe evidence in our case, tbougb somewhat circumstantial, tends to sbow conclusively tbat tbe fire was ignited by live sparks or coals tbat fell from tbe defendant’s engine. Tbis being so, tbe proof is also clear tbat tbe track and right of way were foul with dry stubble, which readily caught from tbe spark •or cinder, and tbat there and in tbat way tbe fire originated. If it caught off tbe right of way, there is equally strong evidence of negligence against defendant, and it was for tbe jury to find the fact. Tbe question was fairly submitted to them. It was sufficient for them to find tbat tbe fire occurred in either one of tbe suggested ways, for it does not, in law, require two acts of negligence to make a wrong. Knott v. R. R., supra.

But defendant contends tbat if tbe fire was negligently caused by tbe engine dropping a live spark from tbe smokestack, or a live eiüder from tbe ash-pan, it was apparently extinguished after burning over intervening land for some distance from its track, and while it smoldered in tbe stumps, and perhaps in other places, it was several days before it broke, out-again and destroyed tbe plaintiff’s timber. The evidence is, tbat on 12 June, 1911, and at first, it burned timber on land next to tbe railroad track before it reached tbe plaintiffs’ timber on tbat day, a small portion of wbicb was consumed, and tbat on 23 June, 1911, it “sprang up” again, and spread to plaintiffs’ other timber. Tbe evidence also discloses • tbe fact tbat plaintiffs assisted in tbe attempt to put out tbe fire, but it turns out tbat tbe combined efforts of all tbe neighbors failed to extinguish it. But it is argued from these facts tbat tbe fire tbat destroyed tbe plaintiffs’ woods on 23 June, 1911, was not proximately caused by tbat wbicb started on tbe defendant’s right of way 12 June, 1911. Neither tbe distance traversed by the- fire, tbougb lands of other parties intervened, nor tbe time elapsing between tbe initial fire and tbe final conflagration wbicb destroyed tbe plaintiffs’ property, is conclusive against tbe exist*119ence of proximate canse, tbat is, tbat tbe second, fire was proximately caused by tbe first. Tbe connection of cause and effect must be established; tbe breach of duty must not only be tbe cause, but tbe proximate cause, of tbe damage to tbe complaining party. ¥e may thus illustrate and state tbe rule: Tbe proximate cause of an event is understood to be tbat wbicb, in a natural and continuous sequence, unbroken by any new, independent cause, produces tbe event, and without wbicb it would not have occurred. This is a general statement of the rule. 1 Sb. and Eedf. on Neg. (5 Ed.), sec. 26. Tbe learned authors add something wbicb is peculiarly applicable to tbe facts of our case: “Proximity in point of time or space, however, is no part of tbe definition. Tbat is of no importance, except as it may afford evidence for or against proximity of causation, tbat is, tbe proximate cause wbicb is nearest in tbe order of responsible causation.” 1 Sb. and Eedf. (5 Ed.), p. 28. While we do not say tbat tbe question of proximate cause may not sometimes, owing to tbe special facts of tbe case in band, resolve itself into one of law, it has been said to be tbe general ánd true rule tbat what is tbe proximate cause of an injury is ordinarily a question for tbe jury, tbe court instructing them as to what tbe law requires to constitute it, and tbe jury applying .the law to tbe facts. It is not a question of science or of legal knowledge. It is to be determined as a fact, in view of tbe circumstances of fact attending it. Tbe primary cause may be tbe proximate cause of a disaster, though it may operate through successive instruments, as an article at tbe end of a chain may be moved by a force applied to tbe other end, that force being tbe proximate cause of tbe movement, or as in tbe oft-cited case of tbe squib thrown in tbe market place. Scott v. Shepherd (squib case), 2 W. Bl., 892. “The question always is, Was there an unbroken connection between tbe wrongful act and tbe injury, a continuous operation? Did tbe facts constitute a continuous succession of-events, so linked together as to make a natural whole, or was there some new and independent cause intervening between tbe wrong and tbe -injury? It is admitted tbat tbe rule- is difficult of application. But it is generally held tbat, in order to warrant a finding tbat negli*120gence, or an act not amounting to wanton wrong, is tbe proximate cause of an injury, it must appear tbat tbe injury was tbe natural and probable consequence of tbe negligence or wrongful act, and tbat it ought to have been foreseen in tbe light of tbe attending circumstances.” R. R. v. Kellogg, 94 U. S., 469.

"What was said by Justice Strong in tbe Kellogg case has generally been approved and adopted by tbe courts as an apt statement and explanation of tbe rule. Ramsbottom v. R. R., 138 N. C., 39.

Judge Cooley has given us three propositions which further illustrate tbe application of tbe general rule, and in which be states it a little differently, but with bis usual accuracy:

(1) In tbe case of any distinct legal wrong, which in itself constitutes an invasion of tbe right of another, tbe law will presume tbat some damage follows as a natural, necessary, and proximate result. Here tbe wrong itself fixes tbe right of action; we need not go further to show a right of recovery, though tbe extent of recovery may depend upon tbe evidence.

(2) When tbe act or omission, complained of is not in itself a distinct wrong, and can only become a wrong to any particular individual through injurious consequences resulting therefrom, this consequence must not only be shown, but it must be so connected by averment and evidence with tbe act or omission as to appear to bave resulted therefrom according to tbe ordinary course of events and as a proximate result of a sufficient cause.

(3) If tbe original act was wrongful, and would naturally, according to tbe ordinary course of events, prove injurious 'to some other person or persons, and does actually result in injury through tbe intervention of other causes which are not wrongful, tbe injury shall be referred to tbe wrongful cause, passing by those which were innocent. But if tbe original wrong only becomes injurious in consequence of tbe intervention of some distinct wrongful act or omission by' another, tbe injury shall be imputed to tbe last wrong as tbe proximate cause, and not to tbat which was more remote. Cooley on Torts (Ed. of 1879), •p. 69.

*121In substantial agreement'witb this view of Judge Cooley is tie further observation of the Court in the Kellogg case, 94 U. S., at p. 475: “We do not say that even the natural and probable consequences of a wrongful act or omission are in all eases to be chargeable to the misfeasance or nonfeasance. They are not when there is a sufficient and independent cause operating between the wrong'and the injury. In such a case the resort of the sufferer must be the originator of the intermediate cause. But when there is no intermediate efficient cause, the original wrong must be considered as reaching to the effect, and proximate to it. The inquiry must, therefore, always be whether there was any intermediate cause, disconnected from the primary fault, and self-operating, which produced the injury. Here lies the difficulty.” Justice Strong adds that this difficulty must be met and the inquiry answered in accordance with common understanding as applied to the peculiar facts. What would be the proximate cause of an event under some circumstances might not be under other and different facts and surroundings, and our common sense, which is the essence of the law, must be brought into service.

We may now the more readily answer the objection of the defendant to the plaintiffs’ recovery, based upon the absence of any proximate cause for the last fire which can be referred to its original negligence. The intervention of time or distance between the two fires, as when seen, is not fatal to plaintiff, but was proper to be considered by the jury on the question of proximate cause. Phillips v. R. R., 138 N. C., 12; Black v. R. R., 115 N. C., 667; Poeppers v. R. R., 67 Mo., 715; R. R. v. McBride, 54 Kansas, 172. If the continuity in sequence of the several events was not broken, and the causes operated together and in connection with each other, either successively or con-curringly, each being a contributing cause to the final result, as the jury, by their verdict, evidently found to be the fact,- the defendant’s act in starting the fire would, in law, be said to have proximately caused the damage to the plaintiffs’ lands, and a cause of actionable negligence would then be presented. The court charged the jury, in substance, that the burden was on the plaintiff to satisfy .them that the same fire which was started *122on 12 June, 1911, burned the land of tbe plaintiffs on the 23d, and if they had failed to do so, they were not entitled to recover; otherwise, they would be. The fire might be so continuous as to form an unbroken chain of causation leading- up to the last, outbreak which destroyed plaintiffs’ trees, although there may have been a considerable interval of- time elapsing between the first and the last fire. Its identity was not lost because it died down and smoldered in the stumps and in other burnable matter, and finally was revived and broke out afresh by reason of the contact with the dry pine leaves, which carried it at once to plaintiffs’ land.

But the defendant’s counsel rely on the case of Doggett v. R. R., 78 N. C., 305, and it must be admitted that, at first blush, there is a seemingly close resemblance between the two eases; but upon further comparison, it is found to be a similarity more apparent than real, and, besides, a critical examination of that ease will discover that the two cases are essentially different. -In this case the court instructed that they must not answer the issue in favor of defendant unless they were satisfied that the fire of the 12th was 'the same that burned the plaintiffs’ woods on the 23d, it- being one continuous fire from the start. There was evidence to support this charge, for the jury might well have inferred from the testimony of the witnesses, Lindsay Brown and others, that the fire had never been extinguished, but continued to burn slowly, or to smolder, until Friday, the 23d, when it reached plaintiffs’ trees and destroyed them. In the Doggett case the very learned Justice laid stress upon the negligence of the plaintiff, placing the burden upon him to show its absence, and also undertook to decide the question of plaintiff’s negligence as matter of law. ¥e know that, in both respects, the law of negligence has since undergone great change by statute and decisions of this Court. Again, in that case, it was said: “The second burning did not necessarily follow the first, because of the intervening arrest of the progress of the fire. But even supposing that the progress of the flames had been continuous, if there was any intervening negligence in the effort to extinguish the fire either by the intermediate owners of fences or by the neighbors who assembled *123for that purpose, 'when, tbeir eudeavors properly exerted might have been successful, the entire weight of authority is that the plaintiff cannot recover.” In our case there is no allegation of negligence on the part of the plaintiffs, in the' answer, and no issue as to it was submitted, nor, we believe, is there any suggestion that they did not do their best to stay the progress of the fire — all that the law required of them. In the Doggett case, as we have seen, in the words taken from the opinion, the “progress of the fire was arrested,” while there is evidence in this record that the fire started on the 12th was not extinguished.

If the defendant wished to rely upon plaintiffs’ negligence, or desired any more definite instruction in regard to it, a specific request should have been made, based upon proper averment in the answer and upon the evidence. Simmons v. Davenport, 140 N. C. (Anno. Ed.), marg. p. 407, and eases cited in note.

Conceding only for the sake of argument that the judge’s charge was somewhat general in its terms, it was in itself correct, and if the defendant thought that some other view of the matter should be presented, 6r that it should be more pointed or addressed more closely to the particular facts, he should have made his want'known to the court in the usual way. So we said, by Justice HoTse, in the apposite case of Gay v. Mitchell, 146 N. C., 509, when the question of proximate cause was likewise involved. The court might well have asked the jury in our case to inquire and find whether, in the exercise of care, the defendant could reasonably have foreseen that the injury to plaintiffs’ property would be the natural and probable consequence of its negligence in dropping sparks in the right of way, and explained more fully the rule of proximate cause, in any view of the evidence presenting the question; but we eanñot say that its omission to give the charge is positive or reversible error, in the absence of any special request to do so. The jury have evidently found that the fire was not extinguished, but continued in its progress, though very slowly at times, until the final catastrophe. It may be true that plaintiffs were under the duty to protect.their property against a seen or known and threatened danger, and to prevent or minimize the danger by the use of proper care (2 Sh. and Eedf. on Neg. (5 Ed.), sec. *124679; Hocutt v. Telegraph Co., 147 N. C., 186), and that- tbeir failure to do so would exculpate defendant or diminish, the measure of its liability. But this question is not now before us, and we forbear to discuss it. Nor need we determine whether there was any intervening or independent cause, or evidence of it, which in law, or in the judgment of the jury acting under proper instructions from the court, would insulate the defendant’s original negligence or affect its liability. Nor need we inquire as to- the nature or intent of such an intervening cause, with respect to its sufficiency for the purpose of breaking, or dissevering the sequence of events, that is, whether it should be itself a. superseding, responsible, or culpable cause. Suffice it to say that proximity of cause has no necessary connection with contiguity of space or nearness in time. The negligent fire, in its foreseeable, natural, and probable course and progress, to be ascertained by attending circumstances, is regarded as a unity. Cooley on Torts (1879), pp. 76-77, and notes. The intervention of considerable time and space may be considered by the jury on the question of proximate cause, but it is not controlling. 2 Sh. and Eedf. on Neg. (5 Ed.), sec. 666, and notes, especially 7 and 8. The pauses in the progress of the fire, and the lapse of time, while matters for the consideration of the jury in determining the continuity of effect, do not enable the Court to say, as matter of law, that the causal connection between the defendant’s negligence in firing the right of way and the injury to the plaintiff was broken. It was so said, substantially, in Haverly v. R. R., 185 Pa. St., 50. The damage, it is true, must be the legitimate sequence of the thing amiss, and if the negligent act and the resulting loss are not known by common experience to be naturally and usually in such sequence, and the damage does not, according to the ordinary course of events, follow from the wrong, then the latter and the damage are not sufficiently conjoined or concatenated, as cause and effect, to constitute actionable negligence, the element of proximate cause being absent. Cooley on Torts, 69.

In this-case the jury must have found that it was one and the same fire throughout its various stages, there being no complete cessation of it. With this fact before us, there does not *125appear to bave been any intermediate efficient and adequate cause operating by itself to break tbe connection, and tbe primary wrong must be considered as reaching to tbe effect, and, therefore, as proximate to it. R. R. v. Kellogg, supra; Insurance Co. v. Boon, 95 U. S., 619.

~We have declined to enter upon tbe wide field of investigation which would bave opened up to us if we bad attempted a critical review of tbe doctrine of proximate' and remote cause, as it is discussed in cases without number, being admonished against tbe futility of such a course by tbe words of a wise judge when discussing a similar question: “It would be an unprofitable labor to enter into an examination of tbe cases. If we could deduce from them tbe best possible expression of tbe rule, it would remain after all to decide each case largely upon tbe special facts belonging to it, and often upon tbe very nicest discriminations. One of tbe most valuable of tbe criteria furnished us by these authorities is to ascertain whether any new cause has intervened between tbe fact accomplished and .the alleged cause. If a new force or power has intervened of itself, sufficient to stand as tbe cause of tbe misfortune, tbe other must be considered as too remote.” Insurance Co. v. Tweed, 74 U. S., 44. For tbe reason given, we do not regard tbe case of Doggett v. R. R. as controlling tbe decision in this case.

Tbe question raised, as to whether there was any evidence that defendant owned a right of way, and if so, as to its extent, is answered by tbe language of tbe witnesses, who testified, in so many words, that tbe fire was seen on tbe right of way and track, which implies, necessarily, that there was a right of way, and, nothing else appearing, this is some evidence of tbe fact for tbe jury. A similar question was decided at this term. Lumber Co. v. Brown.

We find no error in tbe record.

No error.