#### M. F. McRAE v. MAXTON, ALMA AND SOUTHBOUND RAILROAD COMPANY.

(Filed 20 October, 1920.)

1. Evidence — Hearsay—Fires—Damages.

A map made by a surveyor showing the number of acres as “claimed” by the plaintiff to have been burnt over and damaged by fire from defendant railroad company’s locomotivfe in an action to recover damages for the negligence of the defendant therein, is hearsay and incompetent as substantive evidence, and a judgment based thereon and calculated by the judge on a verdict of so much damage per acre, the acreage riot being found by the verdict,, is reversible error.

‘Ss. .Appeal and Error — Judgments—Fires—Damages—Evidence.

When the trial judge has erroneously calculated the fire damage to plaintiff’s land by multiplying the damage per acre, found by the verdict, the number of acres not being admitted nor found by the verdict, the ■question as to whether the judgment should have been based upon other ■evidence of a different acreage, without motion therefor, is not presented ■on appeal.

•S. Negligence — Issues—Pleadings—Evidence—Fires—Damages.

An answer to an issue, was “the plaintiff’s land burned over by the negligence of the defendant, as alleged in the complaint?” refers to the negligence alleged and not to the number of acres of the plaintiff that were damaged. ■

Appeal by tbe defendant from Guión, J., at September Term, 1920, <of ROBESON.

Action to recover damages for burning over plaintiff’s land from a fire set out by sparks and cinders escaping from a defective engine, •catebing on a foul and inflammable right of way, and spreading tbence to tbe plaintiff’s land. Verdict and judgment for tbe plaintiff, and .appeal by tbe defendant.

McNeil & Haclcett'and Junius J. Goodwin for plaintiff.

Henry A. McKinnon and McLean, Varser, McLean & Stacy for ■■defendant.

Clabk, O. J.

Tbe complaint averred tbat “about 50 acres” of plaintiff’s land was burnt over as tbe consequence of sparks negligently *224emitted from tbe defendant’s engines. Tbis was squarely denied by tbe answer. Tbe only evidence as to the acreage burnt over is that of tbe court surveyor, wbo testified tbat be “surveyed burnt lands for plaintiff about tbe middle of March and made tbis map introduced as exbibit ‘A,’ showing plaintiff’s claim, for 42.2 acres burned, . . . went over burnt area as indicated on map, pointed out by M. E. McRae.” Tbe only other testimony as to tbe acreage burnt is that of A. D. McRae, brother of tbe plaintiff, wbo testified “about 40 acres burnt over.”

There was no issue submitted as to tbe acreage burnt over. To tbe issue, “What damage, if any, is tbe plaintiff entitled to recover from tbe defendant?” the jury responded, “$12.50 per acre.”

Had tbe jury responded in a lump sum, it would have been conclusively presumed tbat they ascertained tbe number of acres in fixing tbe damage. Tbe number of acres was not admitted, nor was it found by tbe jury, and it was error to enter judgment upon the indefinite verdict.

Tbe surveyor, whose survey was made several months after tbe fire, testified tbat bis map, which was introduced in evidence, showed “plaintiff’s claim 42.2 acres burned,” and added, “that the burnt area was XDointed out to him by M. E. McRae” (tbe plaintiff). Tbis was incompetent because M. E. McRae bad not testified as to tbe area burnt over, and was not even corroborative evidence. It was merely tbe hearsay statement of tbe plaintiff and tbe map was simply a statement of tbe plaintiff’s claim as to tbe acreage. It was error for tbe judge to take tbat unproven acreage and multiply it by tbe jury’s finding of $12.50 per acre and enter a verdict for $527.50. .The jury did not even find tbe “about 40 acres” estimate of A. D. McRae to be correct, and whether the judge could have given judgment for tbe recovery of $500 is not before us, for be did not enter such judgment, and there was no motion by tbe plaintiff that be should do so.

Tbe plaintiff insists that tbe second issue finds tbat “the plaintiff’s property was burned by tbe negligence of tbe defendant, as alleged in the complaint.” But that issue is only as to tbe negligent burning; as tbe first issue is to tbe ownership of tbe property. Neither of them throw any light upon the acreage burnt over, which was not a fact that could be found by tbe judge.

There are several other exceptions, in view of which, without discussing them (as they may not arise again), tbe case should be sent back without being restricted to tbe issue of damages, for a

'New trial.