#### T. G. REID v. CAROLINA, CLINCHFIELD AND OHIO RAILWAY COMPANY et al.

(Filed 8 December, 1920.)

1. Negligence — Evidence—Railroads—Fires—Sparks from Locomotive— Nonsuit — Trials.

In an action against a railroad company to recover damages for setting fire to plaintiff’s bouse by sparks from its locomotive, in bright daylight, evidence tending to show that eight or nine minutes after the passing of defendant’s locomotive fire caught on the roof of plaintiff’s house nearest the defendant’s track, midway between the kitchen chimney and flue, the wind carrying large quantities of smoke from the locomotive drawing a heavy train, which was exhausting heavily, towards the plaintiff’s house, and that the fires in plaintiff’s chimney and stoves had died down early in the day, is sufficient upon the defendant’s actionable negligence to take the case to the jury, and to deny defendant’s motion to nonsuit; and testimony of witness that he had seen the smoke, but no sparks coming from the locomotive, at the time, does not exclude the inference by the jury that the locomotive was throwing them out with the exhaust. Deppe v. R. R., 152 N. O., 79, cited and applied.

2. Same — Instructions.

Reid, the evidence in this action to recover of defendant railroad company damages caused the plaintiff for negligently setting fire to his house *512by sparks from its passing locomotive, did not justify the giving of defendant’s requested instructions, that if “all the evidence were believed, the spark arrester was such as was approved at the time, and the engine was being handled by competent and skillful operatives, in a skillful and competent manner.”

Appeal by defendant from Long, J., at April Term, 1920, of Ruthek-eokd.

Tbis action is to recover damages for tbe negligent burning of tbe plaintiff’s residence and furniture. There is no contest as to tbe plaintiff’s title to tbe property burned, or as to tbe value thereof. Tbe assignments of error are tbe refusal of a motion for a nonsuit, and for tbe refusal of a prayer to instruct tbe jury as prayed, that “if they believe all tbe evidence, tbe defendant at tbe time of tbe fire bad a spark arrester such as was at that time approved and in general use, as required by law, and that tbe engine was being bandied by its operatives in a competent and skillful manner by competent and skillful operatives.”

Verdict and judgment for plaintiff; appeal by defendant.

Solomon Gallert for plaintiff.

Pless, Winborne & Pless, II. S. Morrison, and J. J. McLaughlin for defendant.

Clare, C. J.

Tbe fire occurred on 20 March, 1919, when there was a high wind, at a time when tbe bouse “was as dry as could be,” and there bad been no rain for some days. Tbe fire caught on tbe roof of tbe bouse nearest tbe defendant’s track, between 3 and 4 p. m., 8 or 9 minutes after defendant’s coal train, with a large engine pulling 50 cars, bad passed. Tbe track was 237 feet, or 79 yards from tbe bouse. When tbe fire was discovered it was about as large as “a medium-sized dish pan,” and was half-way between tbe kitchen chimney and tbe flue. When tbe engine passed it was exhausting heavily, making much noise, and tbe smoke was coming towards tbe bouse. Tbe witness testified that be was standing on tbe kitchen porch, and that tbe fire caught on tbe kitchen roof. Tbe stove flue was pretty close to tbe south side of tbe kitchen, and prejected about five feet abové tbe roof. It was well protected by brick. Tbe fireplace was at one end of tbe kitchen and tbe stove was at tbe other.

It was in evidence that there was 10 feet between tbe stove and tbe fireplace, which were at opposite ends of tbe kitchen; that there bad been no fire in tbe stove since before noon when dinner was served, and that tbe fire in tbe stove bad gone out, and tbe fire in tbe kitchen fireplace, which bad been built between 9 and 10 in tbe morning, bad burned down to two or three chunks and coals.

*513Tbis evidence, taken in tbe most favorable light to the plaintiff, if believed by the jury, might well warrant the inference that the large engine, exhausting heavily and drawing 50 coal ears, which passed a few minutes before the fire broke out on the kitchen roof, when there was no fire either in the stove or in the fireplace, nor had been for some time, the wind blowing from the track directly toward the house, and'bringing the heavy smoke rolling out of the engine, brought sparks, though being in the daytime, on a bright day, there was no evidence of sparks being seen. The plaintiff was therefore entitled to have the issues submitted to the jury. In Moore v. R. R., 173 N. C., 311, relied on by the defendant, there was no evidence to connect the defendant with the fire other than the bare fact that the defendant’s locomotive passed by the plaintiff’s property not very long before the fire. In this case, as in Deppe v. R. R., 152 N. C., 19, there was evidence tending to show that the fire came from the defendant’s engine, and there is the exclusion of every other known source, if the jury believed the evidence for the plaintiff.

It was not error to refuse the prayer for instruction, which called upon the judge to express an opinion on the facts. If, as the jury found, the fire was caused by sparks from the defendant’s engine, that of itself was some evidence of negligence, either in the condition of the spark arrester or in the operation of the engine. This was so held in Currie v. R. R., 156 N. C., 424, 425. There was no evidence that the engine was not throwing sparks, but merely that the witness did not notice any, nor did the evidence justify an instruction that if “all the evidence were believed, the spark arrester was such as was approved at the time, and the engine was being handled by competent and skillful operatives at the time in a competent and skillful manner.” There was evidence that the fireman was an “extra” fireman; that he did not fire regularly on that engine, on which he fired only on one trip some two months before. The spark arrester had been in constant use for 3 or 4 months, and the inspection of the spark arrester which had been made not long before the fire, was done by a witness who testified that he was a carpenter, and not in the employ of the railroad company, and had not done work of that kind before, and that the spark arrester was not long afterwards taken out for repairs.

No error.