#### J. W. BRADY v. WACCAMAW LUMBER COMPANY.

(Filed 27 March, 1918.)

Railroads — Fires—Negligence—Act of God — Proximate Cause — Trials—Evidence — Nonsuit.

Where there is evidence that a fire was set out and damaged plaintiff’s land from a defective locomotive of defendant railroad company on its foul right of way, and also, in defendant’s behalf, that the damages would not have resulted except for an unusually high wind, a judgment of nonsuit is properly refused, the defendant’s initial negligence running *705through and being the proximate cause of the concurring acts which resulted in the injury complained of. Ferebee v. R. R., 163 N. C., 331, and other like cases, cited and applied.

ActioN, tried before Devin, J., and a jury, at August Term, 1917, of Beunswioe:.

Plaintiff sued for damages from burning timber on bis land, wbicb be alleged was caused by defendant’s negligence. Tbe fire was set out from one of tbe defendant’s engines, wbicb it is alleged, was defectively constructed, so tbat it emitted sparks from its smoke-stack, it not having a proper spark-arrester. Tbe jury returned tbe following verdict:

1. Is tbe plaintiff tbe owner of tbe lands described in tbe complaint as tbe borne tract, and of tbat portion of tbe Gum Branch tract alleged to have been burned over? Answer: “Yes.”

2. Did tbe defendant negligently and carelessly cause tbe fire, as alleged in tbe complaint, to burn over lands owned by tbe plaintiff and cause damage as alleged? Answer: “Yes.”

■ 3. "What damage, if any, is plaintiff entitled to recover from tbe defendant? Answer: “$500.”

Tbe defendant at tbe close of tbe evidence moved to nonsuit tbe plaintiff. Motion refused. Judgment on tbe verdict, and appeal by defendant.

G. Ed. Taylor for plaintiff.

Robert Ruarle for defendant.

Pee Cubiam :

Tbe case states and there was proof:

1. Tbat plaintiff is tbe owner of tbe land on wbicb tbe timber was' standing and growing.

2. Tbat tbe defendant negligently started tbe fire.

3. Tbat tbe amount of damages is $500.

There was testimony to tbe effect tbat tbe defendant’s engine was defective, and its right of way was foul. Tbe fire caught on tbe right of way, and was communicated over tbe intervening land to plaintiff’s timber on an adjoining tract. Tbe defendant contends tbat there was an extraordinary wind blowing at tbe time, and this caused tbe fire to spread and destroy tbe plaintiff’s trees, and tbat this was a special intervening cause of tbe injury beyond its control, it being an act of God, for wbicb defendant was not responsible.

While there is evidence tbat there was a very high and strong wind, wbicb was not usual at tbat season of tbe year, tbat is, in tbe month of June, but quite usual at tbe equinoctial period, there is also evidence tbat “tbe wind was blowing a pretty good gale, but witnesses would not say tbat it was unusual.” So tbe evidence was not all one way, and in *706tbe best view of tbe evidence for tbe defendant, it was a question for tbe jury, as to tbe force of tbe wind, and as to wbetber it was usual or unusual, and also as to wbetber it was an independent or providential cause, for wbicb defendant was not responsible; tbat is, if sucb a question could arise in tbe admitted state of tbe proof. There was evidence tbat tbe fire was caused, in part at least, by defendant’s negligence, and wben sucb negligence concurs and cooperates witb some other cause in producing tbe injury, so tbat tbe latter is not a sole and independent cause sufficient of itself to have caused tbe injury, tbe defendant is liable. We held so in Ferebee v. R. R., 163 N. C., 351, 354, where we said, quoting from Shearman and Redfield on Negligence (6 Ed.), sec. 16: “When an act of God or an accident combines or concurs witb tbe negligence of tbe defendant to produce tbe injury, or wben any other efficient cause so combines or concurs, tbe defendant is liable if tbe injury would not have resulted but for bis own negligent act or omission!’

And again it was there said: “It was urged for defendant tbat tbe evidence tending to show tbe prevalence of an unusual windstorm on tbe night in question has not been allowed its proper weight, but, on tbe facts in evidence, tbe position cannot avail tbe defendant. Tbe negligent placing of tbe boxes having been accepted as tbe proximate cause of tbe injury, or one of them, tbe defendant is not relieved, though an unexpected or unusual storm should have contributed also to tbe result.” And we say here:

Tbe two questions in tbe case are:

1. 'Whether there was a failure on defendant’s part to use ordinary care in performing some legal duty wbicb it owed to tbe plaintiff under tbe circumstances.

2. Whether tbe failure so to do was tbe proximate cause of tbe injury, a cause tbat produced tbe result in continuous sequence and without wbicb it would not have occurred, and one from wbicb any man of ordinary prudence could have foreseen tbat sucb a result was probable under all tbe facts as they existed. Ramsbottom v. R. R., 138 N. C., 39; Brewster v. Elizabeth City, 137 N. C., 392; Raiford v. R. R., 130 N. C., 597; Hardy v. Hines Lumber Co., 160 N. C., 113.

It is not required, in order to constitute proximate cause, tbat tbe negligent act should be next in tbe order of time and place to tbe injury. It may be tbe first cause if it operates in unbroken and continuous sequence until tbe injury occurs.

Shearman and Redfield on Negligence, sec. 26, says: “Tbe proximate cause of an event must be understood to be tbat wbicb in natural and continuous sequence, unbroken by any new and independent cause, produces tbat event and without wbicb sucb event would not have occurred. Proximity in point of time and space, however, is no part of tbe definition.”

*707• Tbis doctrine of causation with, reference to setting out and spreading fires by sparks from an engine was considered fully in Hardy v. Hines Lumber Co., supra, to wbicb we refer, it being so much like this case as to control it. We said in that case: “The primary cause may be the proximate cause of a disaster, though it may operate through successive instruments, as an article at the end of a chain may be moved by a force applied to the other end, that force being the proximate cause of the movement, or as in the oft-cited case of the squib thrown in the market place. Scott v. Shepherd (squib case), 2 W. Bl., 892. ‘The question always is, Was there an unbroken connection between the wrongful act and the injury, a continuous operation? Did the 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 the wrong and the injury? It is admitted that the rule is difficult of application. But it is generally held that, in order to warrant a finding that negligence, or an act not amounting to wanton wrong, is the proximate cause of an injury, it must appear that the injury was the natural and probable consequence of the negligence or wrongful act, and that it ought to have been foreseen in the light of the attending circumstances.’ R. R. v. Kellogg, 94 U. S., 469.”

There was sufficient evidence to sustain the verdict, and the nonsuit was properly disallowed.

No error.