#### N. A. BOND et al. and N. E. HICKS et al. v. CAROLINA, CLINCHFIELD AND OHIO RAILWAY COMPANY.

(Filed 22 May, 1918.)

1. Appeal and Error — Instructions—Railroads—Fires—Negligence.

Where an action to recover damages against a railroad company for negligently setting out fire to the damage of plaintiff's lands, both from the pleadings and evidence centers solely on the question of whether the fire started on'the defendant’s foul right of way or otherwise from an independent source, and the issue has been answered in defendant’s favor, *607a charge of the court which fails to give the plaintiff the benefit of the presumption of the origin of the fire (Chorrie v. R. R., 156 N. O., 423) is unob j ectionable.

2. Railroads — Fires—Rights of Way — Negligence—Burden, of Proof.

Where fire damages to plaintiff’s lands are sought in an action against a railroad company, and there is no allegation or evidence that it was caused by a defective engine, or that it negligently operated, but only that it was caused by a foul right of way, the burden of proof is on the plaintiff to show that it was caused by the negligence alleged.

3. Appeal and Error — Instructions—Evidence—Harmless Error.

AVhere a phase of negligence is submitted under the judge’s charge to the jury prejudicial to the appellee only and unsupported by allegation and evidence, it will not be considered as reversible error to the appellant on appeal.

Appeal by plaintiffs from Ferguson, J., at the October Term, 1917, of RuTHEREOED.

This is an action by Gladys Bond and bnsband, N. A. Bond, and' N. E. Hicks and husband, H. Z. Hicks, against Carolina, Clinehfield, and Ohio Railway, to recover damages of the defendant for the burning over of plaintiff’s land, and the destruction of timber alleged to have been caused by the negligence of the defendant. The cases were consolidated and tried together at the October Term, 1917, of Rutherford Superior Court, as the same fire burned over the lands of the plaintiffs in each case. The plaintiffs filed similar complaints touching the origin of the fire, and the cause of same, and the allegation of the plaintiffs was “That on the 15th day of April, 1916, the defendant ran its trains and engine over its track by and along the lands of plaintiffs in a negligent manner, and negligently permitted sparks to be emitted from said engine, which sparks were allowed to fall upon the lands of plaintiffs adjacent to the defendant’s right of way, and on said right of way, and to set fire to the combustible materials thereon,” and the plaintiffs further alleged “that the defendant had permitted and allowed inflammable material to be and remain on its right of way at the point where the railroad passes over and along plaintiffs’ lands, which said inflammable materials were set on fire by sparks falling from one of defendant’s engines passing over its right of way, or otherwise, on the 15th day of April, 1916.”

There was a further allegation as to the damages to plaintiffs’ land by burning over a large number of acres for the plaintiffs in each ease, and the destruction of growing timber, wood and other property, and the impoverishing of the plaintiffs’ lands.

The defendant denied the allegations of its negligence, and alleged that the fire originated elsewhere, and that it was in no wise responsi*608ble for tbe origination or spread of tbe fire or tbe burning of tbe timber on tbe lands of tbe plaintiffs.

Upon tbe trial of tbe cause, tbe plaintiffs offered evidence to sustain tbe allegations contained in tbe complaint, several witnesses testifying tbat one of defendant’s trains passed over tbe track at tbe point where tbe lands of plaintiffs were situated, and tbat immediately prior to tbe passing of tbe train there was no fire in tbat vicinity, and tbat in a few minutes after tbe train passed tbe right of way, which bad grown up in broom-sedge, and at this season of tbe year was old and dry, and in an inflammable condition, was seen to be burning. Witnesses also testified tbat tbe engine of tbe train passed by tbe witnesses who were situated close to tbe railroad track as it approached tbe lands of tbe plaintiffs, and was emitting live coals and sparks, and tbat some of these fell on tbe witnesses, and burning tbe clothing, and they further testified tbat following tbe passage of tbe train they noticed smoke arising •on tbe right of way of tbe railroad track at tbe point adjacent to plaintiffs’ lands, and upon investigation found tbat tbe fire bad originated within twelve feet of tbe railroad track and bad burned off tbe right of way and on to plaintiffs’ lands, and it was further in evidence tbat tbe railroad right of way at this point was 100 feet on each side of tbe track. Witnesses further testified tbat tbe sparks emitted from tbe engine were large live coals and sufficiently large and hot to ignite tbe inflammable material on tbe right of way, or elsewhere tbat they might fall.

Tbe evidence of tbe defendant was to tbe effect tbat tbe fire originated one-fourth of a mile from tbe railroad — possibly from a blockade distillery' — and was seen at tbat point several hours previous to tbe passage of its train, and tbe defendant offered evidence tending to show tbat tbe fire did not reach its right of way until several hours after tbe passage of its train, and tbat it spread to its right of way from tbe lands adjacent thereto.

Tbe defendant admitted tbe title of plaintiffs to tbe lands in controversy, which bad been denied in tbe answer.

Tbe defendant offered no evidence as to tbe condition of its engine, and no evidence as to its spark arrester being in good condition, and no evidence as to tbe manner of tbe operation of its train on tbe day in question.

Tbe judge charged tbe jury as follows:

“Tbe burden is on tbe plaintiffs, gentlemen of tbe jury, to prove by tbe greater weight of tbe evidence tbat their lands were burned over by fire which escaped from tbe defendant’s engine, or train, and if they fail in tbat respect tbat would be tbe end of tbe case, and it would be your duty to answer tbe first issue ‘No.’

*609“(a) But tbe burden is on tbe plaintiffs further to satisfy you — even if you find tbat tbe fire did bum over plaintiffs’ land thrown from tbe defendant’s engine, or train — by tbe greater weight of tbe evidence, tbat tbat was tbe result of tbe negligence of tbe defendant in failing to do a duty which tbe law requires of it. One of those duties which tbe law requires is tbat it shall keep its right of way clear from rubbish and inflammable matter, and if it fails to do so and by reason of the condition of tbe right of way fire from tbe train ignites on tbe right of way, it would be attributable to tbe negligence of tbe defendant and tbe defendant would be answerable for any damage which might result. Tbe defendant is required to keep a proper spark arrester so as not to allow live coals and red-hot cinders to escape from tbe engine which are calculated to set tbe woods on fire, and if tbe fire got out from a defective engine in tbat respect, it would be negligence on tbe part of tbe defendant” (b)

To so much of tbe foregoing charge as is included between (a) and (b)tbe plaintiffs excepted.

“Have tbe plaintiffs satisfied you from tbe evidence, by tbe greater weight of tbe evidence, tbat tbe fire originated and came from tbe defendant’s engine.or train?

(c)“And if so, have they satisfied you from the evidence, by tbe greater weight of tbe evidence, tbat it caught from tbe right of way, and tbe right of way was foul ? If so, it would be your duty to answer tbe first issue ‘Yes.’ But if they have failed to do so, it would be your duty to answer it ‘No.’ (d)

To so much of tbe foregoing charge as is included between (e) and (d)tbe plaintiffs excepted.

(e)“If you shall find from tbe evidence, by tbe greater weight of tbe evidence, tbat tbe fire was caused by reason of a defective spark arrester, one which allowed sparks to escape from the engine sufficiently lighted or heated to set fire wherever they would strike; if you should find tbat it was dry and tbe sparks from tbe engine lit on tbe land of tbe defendant, or on tbe right of way, and spread from tbat over tbe plaintiffs’ land, and you so find from tbe greater weight of tbe evidence, it would be your duty to answer tbe first issue ‘Yes.’ If you fail to so find as to either, it would be your duty to answer it ‘No.’ ” (f)

To so much of tbe foregoing charge as is included between (e) and (f)tbe plaintiffs excepted.

“It is contended by tbe plaintiffs tbat there was no fire along tbe railroad a few minutes before tbe train passed; they argue that smoke was seen to rise directly after tbe train passed and tbat tbe passenger train going along was emitting sparks which burned when they struck anything, and tbat fire was discovered to be along tbe right of way and *610burning from the railroad into the woods. That is the contention upon the part of plaintiffs, and the plaintiffs urge in their contentions that you should so find that the right of way was foul, and that these sparks ■falling upon the right of way and inflammable matter, broomsedge, spread out over the lands.

“The defendant contends that you could not so find from the evidence. The defendant contends that it was shown you from evidence which it asks you to believe that fire was seen to be burning and smoke rising some quarter of a mile from the railroad early in the day, between 8 and 9 o’clock, and that that continued to spread out over the woods and in the direction where this fire was, and that parties passing along there as late as 3 or 4 o’clock saw no fire on the right of way, and that the fire was 240 feet from the right of way. The defendant insists that it has produced evidence, which it asks you to believe, that there was a blockade still running in that neighborhood not a great distance from the railroad right of way the day before and that fire broke out at 8 or 9 o’clock in the morning, and the defendant insists that you ought to find from the evidence that that was the fire which burned over the lands, and not the other.

“You are the sole judges of the credibility of the witnesses and of the weight to be given to their testimony. If you shall find from the greater weight of the evidence that this land of the plaintiffs — it is admitted it was the same fire — was burned over by the negligence of the defendant, it would be your duty to answer the first issue ‘Yes,’ then fix the damages. But if you fail to so find, it would be your duty to answer it ‘No.’ If you answer the first issue ‘Yes,’ you will then find the damages.”

The jury returned the following verdict:

1. Were lands of the plaintiffs burned over by the negligence of the defendant, as alleged in the complaint? Answer: “No.”

Judgment was rendered in favor of the defendant upon the verdict and the plaintiff appealed.

Byburn & Hoey for plaintiffs.

H. G. Morrison, J. J. McLaughlin, F. D. Hamrich, and Pless & Win-borne for defendant.

AíleN, J.

We have set out the allegations of negligence, the evidence offered to support these allegations, and the charge of the Court, for the purpose of showing that the real controversy between the_ plaintiffs and the defendant was as to the origin of the fire, the plaintiffs contending that sparks fell from the engine of the defendant on combustible matter on its right of way and was thence communicated to the lands *611of tbe plaintiffs, and tbe defendant contending tbat tbe fire came from an illicit distillery operated off tbe right of way of tbe defendant by parties unknown.

There is no allegation of a defective engine or spark arrester, and no suggestion of negligent operation except in tbe third paragraph of tbe complaint where it is alleged tbat tbe defendant ran its trains in a “negligent manner,” without specifying in what tbe negligence consisted, and this is followed in tbe same paragraph by the allegation tbat tbe negligence was in permitting sparks to fall on combustible matter.

And when we turn to tbe evidence for tbe defendant it is directed solely to tbe origin of tbe fire.

There is no evidence tending to prove tbat there was no combustible matter on tbe right of way of defendant, and nothing to exculpate tbe defendant if tbe fire came from its engine.

We are, therefore, constrained to bold tbat tbe only question in controversy on tbe first issue was whether tbe fire which burned over tbe lands of tbe plaintiffs came from tbe engine of tbe defendant or from tbe illicit distillery, and when so considered, tbe charge, if otherwise objectionable in failing to give tbe plaintiffs tbe benefit of tbe presumption arising from proof of tbe origin of tbe fire, as in Currie v. R. R., 156 N. C., 423, is unobjectionable, as tbe jury has found tbe fact against tbe plaintiffs.

Again, there being no allegation of a defective engine, tbe burden was on tbe plaintiffs, as bis Honor charged, to establish tbe negligence relied on, tbe accumulation of combustible matter on tbe right of way. Moore v. R. R., 124 N. C., 338; McMullan v. R. R., 126 N. C., 725.

Tbe charge as to tbe spark arrester was without evidence to support it, tbe evidence being that tbe fire started on tbe right of way, if it originated from tbe engine of tbe defendant, but of this tbe plaintiff cannot complain, as it gave them tbe benefit of having tbe jury consider in their favor a phase of negligence without allegation or proof, which might impose a liability on tbe defendant.

No error.