#### H. S. AMAN v. ROWLAND LUMBER COMPANY.

(Filed 3 October, 1912.)

1. Evidence — Negligent Burning — Sparks from Engine — Dry Brush —Nonsuit.

In an action for damages by fire alleged negligently to have been started by the defendant lumber company on its own premises and communicated to plaintiff’s land, there was evidence tending to show that the defendant was operating a steam logging skidder, adjoining which it had cleared a space, known as a log-deck, by removing the trees and some of the undergrowth, *370piling them at a distance of 30 or 40 feet, that had become very dry and combustible at the time of the fire, which started in the dry tops of the trees removed in clearing the log-deck;; that sparks had been seen the day before, coming from the skidder engine, and that a tram engine, operated by defendant, had been stopped in its operation at the dinner hour, its fire banked so that it could not emit sparks, from twenty to forty minutes before the fire was first seen; that there were no fires in the vicinity except those of the skidder and tram engines, and there were coals on the ground near the skidder engine: Held, under the principle that upon a motion to nonsuit the evidence is to be construed more favorable for the plaintiff, the evidence was sufficient to be submitted to the jury under the issue of defendant’s actionable negligence.

2. Negligent Burning — Sparks from Engine — Dry Brush — Proximate Cause — Presumptions—Burden of Proof.

In this action for damages by fire alleged negligently to have been started by defendant lumber company on its own premises and communicated to plaintiff’s land, instructions to the jury were correct, that if the defendant allowed combustible matter to accumulate on its land in such close proximity to its engine that it exposed adjacent property to unnecessary peril, and the fire was caused by sparks or coals from the engine, a prima fade case of negligence was made out, and they should determine, upon all the evidence, whether the combustible matter was fired by sparks from a negligently constructed or operated engine. The principles relating to the negligence of a railroad company in causing damage by fire originating either on or off of its right of way from a defective engine or one negligently operated, discussed by Walker, J.

3. Instructions — Charge as a Whole — Appeal and Error.

When a charge construed as a whole is correct, and it appears that the jury must have understood it, it will not be held for reversible error that disconnected parts are objectionable.

4. Evidence — Negligent Burning — Defective Engine — Sparks.

In an action to recover damages for the alleged negligent burning by defendant of the trees on plaintiff’s land caused by sparks from an engine operating.a skidder on the defendant’s premises, and thence communicated to the plaintiff’s land, evidence which tends to show that the engine had emitted sparks and that coals had come from the engine and were lying upon a log-deck adjacent to it, is competent as bearing upon the defective condition of the engine.

*3715. Evidence Excluded — Previous Testimony — Substance—Harmless Error.

Tbe exclusion of testimony not held, for error in this case, it appearing that the witness had already testified, in substance, to the same thing.

Appeal by defendant from Garter, J., at August Term, 1912, of SAMPSON.

Tbis action was brought to recover damages for tbe burning of plaintiff’s timber, alleged to bave been caused by defendant’s negligence in permitting sparks to escape from its engine. Defendant was engaged in operating a steam logging skidder for tbe purpose of removing saw-logs from its woods, to be carried over its tramroad to tbe mill. In order to operate tbe skidder, defendant bad. cleared a space adjoining it, and known as a log-deck, by removing tbe trees and some of tbe undergrowth and piling them 30 or 40 feet away from tbe skidder. Tbe fire started in tbe tree-tops, which bad become very dry and combustible during a long period of drought and warm weather. Some of tbe witnesses bad seen sparks, on tbe day before tbe fire, coming from tbe defendant’s engine at tbe skidder, and there were coals on tbe ground near tbe skidder. Tbe log-deck or right of way, as it is called in tbe record, was covered with dry and inflammable grass and leaves, though one of tbe witnesses stated that tbe fire did not originate there, but in tbe tree-tops at tbe edge of tbe log-deck. It also appeared that defendant ran a dummy engine on its tramroad, near tbe place where tbe fire started, though no one saw any sparks emitting from it. There was no fire in tbe vicinity except tbe fires in tbe two engines. There was evidence that tbe fire broke out during tbe dinner hour, when tbe logging engine was shut down and its fires banked, so that it could not emit any sparks, but one witness testified that the fire may bave been set out before the engine was stopped, as it was only from twenty to forty minutes from tbe time tbe draft of tbe engine was shut off until tbe fire was first seen in tbe tree-tops. ' There was other evidence not necessary to be stated. There was a verdict for plaintiff, and a judgment being entered thereon, defendant appealed.

*372 Fowler & Grumpier for plaintiff.

A. McL. Graham and G. B. Butler for defendant.

"Walker, J.,

after stating tbe case: Tbe defendant asked for a judgment of nonsuit, and its refusal presents tbe main question in tbe case. Tbe familiar rule is tbat tbe .evidence, upon sucb a motion, should be considered in its most favorable light for the plaintiff, and every fact which it proves or tends to prove should be taken as established. "With this guide before us, we are led unhesitatingly to tbe conclusion tbat tbe ruling of tbe court was correct. It is true, tbe fire did not originate within tbe log-deck, but on its edge, where tbe defendant bad caused very inflammable material to be piled, and tbe fire started in this brush-heap only 30 feet from tbe skidder, as tbe jury might well have found, there being circumstantial evidence tbat it was communicated from tbe engine of tbe skidder. Tbe jury were fully instructed as to tbe law of tbe case, and they were told tbat if defendant allowed dry and combustible matter to accumulate on its land, in sucb close proximity to its engine tbat it exposed adjacent property to unnecessary peril, and tbe fire was caused by sparks or coals from tbe engine, a prima fade ease of negligence was made out, and in this view, tbe case was properly submitted to tbe jury, upon all tbe evidence, to find tbe fact whether tbe brush-heap was fired by sparks from a negligently constructed or operated engine.

If tbe fire was not caused by tbe engine, or, if so caused, tbe engine was properly constructed and operated, tbe defendant is not liable, because in tbat event there has been no breach of a duty owing to tbe plaintiff. Tbe best constructed engines may sometimes emit live sparks. If there was negligence in tbe construction or operation of tbe engine, and tbe fire proximately resulted therefrom, tbe liability of tbe defendant from tbe consequent danger is apparent. All this was correctly stated and explained to tbe jury by tbe learned judge who presided at tbe trial, and tbe charge of tbe court, when properly construed, was in perfect conformity with our decisions.

It can make no difference whether tbe sparks lighted on or off tbe right of way, if they kindled tbe fire and destroyed plain*373tiff’s trees, there was a sufficient case of prima, facie negligence for submission to tbe jury, upon the whole evidence, to find the ultimate fact of negligence. This Court has been most pronounced in its opinion upon this subject, and has adhered steadily and strictly, without the shadow of turning, to the just rules which have heretofore been promulgated. We repeat them here once more:

“1. If fire escapes from an engine in proper condition, having a proper .spark arrester, and operated in a careful way by a skillful and competent engineer, and the fire catches off the right of way, the defendant is not liable, for there is no negligence.

“2. If fire escapes from an engine in proper condition, with a proper spark arrester, and operated in a careful way by a skillful and competent engineer, but the fire catches on the right of way, which is in a foul and negligent condition, and thence spreads to the plaintiff’s premises, the defendant is liable. Moore v. R. R., 124 N. C., 341; Phillips v. R. R., 138 N. C., 12.

“3. If fire escapes from a defective engine, or defective spark arrester, or from a good engine not operated in a careful way or not by a skillful engineer, whether the fire catches off or on the right of way, and causes damage, the defendant is liable.” Williams v. R. R., 140 N. C., 623.

These rules have been approved for a very long period and in numerous cases. Ellis v. R. R., 24 N. C., 138; Chaffin v. Lawrance, 50 N. C., 179; Aycock v. R. R., 89 N. C., 321; Craft v. Timber Co., 132 N. C., 151; Haynes v. Gas Co., 114 N. C., 203; Knott v. R. R., 142 N. C., 238; Cox v. R. R., 149 N. C., 117; Deppe v. R. R., 152 N. C., 79; Kornegay v. R. R., 154 N. C., 389; Currie v. R. R., 156 N. C., 419; Mizzell v. Manufacturing Co., 158 N. C., 265; Hardy v. Hines Lumber Co., ante, 113. Where the first is caused by sparks falling from the engine on a foul right of way, the railroad is liable for the ensuing damage to others, as it is per se negligence to keep such a right of way which would constantly expose their property to the risk of fire-. Where the act of negligence is charged to be a defective engine, it can make no material difference whether the spark lights within or without the right of way, and the following rule must prevail:

*374“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 ihentioned as necessary.” Sherman and Redf. on Negligence, sec. 676.

The liability is fixed, first, if the fire was ignited on a foul right of way, and, second, if not on the right of way, then if the engine was negligently constructed or operated, the fact also being found that the fire originated from the engine and was the proximate cause of the damage — an event reasonably foreseeable as the natural and probable result of the negligent act. Hardy v. Hines Lumber Co., supra. But in this case the tree-tops had been piled by the defendant, for its own purpose and convenience, so near the engine and had become so parched and inflammable by the effect of the dry weather upon it that it easily ignited from the sparks and was carried by the strong north wind, which had already set in that direction, to the plaintiff’s adjoining land and timber, and thereby caused the damage of which he complains. This is what the jury evidently found, under the evidence and the charge of the judge, and it made out at least a case of actionable negligence against the defendant.

The criticism of the charge by defendant’s counsel might be just and the exception to it- well taken, if it could be restricted to the detached portion thereof which is the object of attack, as it is not quite as explicit, perhaps, as it should have been, but when these isolated sentences or extracts are construed with the other parts of the charge, and viewing the latter in its entirety and thus reading it as' a whole, as we are required to do (S. v. Exum, 138 N. C., 599; S. v. Lance, 149 N. C., 551), the meaning of the judge could not well have been misunderstood by an intelligent jury. We have recently said that “The charge is to be considered as a whole in the same connected way in which it was given, and upon the presumption that the jury did not overlook any portion of it. If, when so construed, it presents the law fairly and correctly to the jury, it will afford no ground *375for reversing tbe judgment, though some of tbe expressions, wben standing alone, might be regarded as erroneous.” Kornegay v. R. R., 154 N. C., 389; Thompson on Trials, sec. 2407. This case is much like Craft v. Timber Co., supra, where we held that piling dry tree-tops or other combustible matter so near its track as to expose adjacent property to the danger of being destroyed or injured by sparks from one of its passing engines was an act of negligence, and, if the proximate cause of the injury, was actionable.

It does not appear, in this cáse, what was the precise extent of defendant’s right of way, so called; but whatever it was, the fact remains that defendant accumulated dangerously inflammable material on its own premises, so near its skidder as to be ignited by a spark from the engine, and thereby communicated fire to plaintiff’s trees, and the law, ancient and modern, requires that he should be recompensed for his loss. “If fire break out and catch in thorns, so that the stacks of corn, or the standing corn, or the field, be consumed theiewith, he that kindleth the fire shall surely make restitution,” was the Mosaic doctrine; and “So use your own as not to injure another” (sic utere tuo ut non alienwn. Icedas•) is that of the common law, which also recognizes and enforces the law of compensation.

The other exceptions require little, if any, comment. The testimony of the witnesses Hobbs and the Hargroves was competent to show that the engine had emitted sparks the day before, as bearing upon its defective condition, and the fact that coals which had come from the engine were lying on the log-deck was also a relevant fact for the same reason. Knott v. R. R., supra. The exclusion of Hefty’s testimony was not error. The judge might well have admitted it, but we think that the witness had just before testified substantially to the same fact.

We have carefully examined all the assignments of error, but have failed to discover any ground for a reversal.

No error.