#### O. L. MATTHIS v. J. D. JOHNSON.

(Filed 6 October, 1920.)

1. Fires— Tramroads — Railroads—Negligence—Defective Locomotives— Burden of Proof.

When it is shown that defendant’s tramroad locomotive set out sparks from its smokestack or fire box which caused an injury to the plaintiff’s land, the burden of proof is on the defendant, having better means Of knowing the facts, to show that its smokestack was reasonably well equipped with a proper spark arrester, and that the fire box to the engine was also reasonably safe; and it is competent to show, in this connection, that the locomotive in question had a short time previously been seen throwing out sparks.

2. Same — Foul Right of Way.

Evidence that the defendant’s tramroad locomotive dropped sparks on a foul place of its right of way, causing a fire which was communicated to plaintiff’s land and damaged it, is sufficient as proof of the defendant’s *131negligence in permitting this condition to exist on its right of way, without showing that its spark arrester was defective.

3. Evidence — Declaration's—Evidence—Eires—Hearsay.

Testimony of a statement made hy a witness who has since died, relative and material to the inquiry in a fire damage case, is incompetent as hearsay.

Appeal by defendant from Kerr, J., at Fall Term, 1920, of SampsoN.

Tbis action was brought to recover damages for setting fire to plaintiff’s lands and tbe timber thereon, in April, 1916, and burning the same. The fire came from defendant’s engine, which was operated on his tram-road. There was evidence tending to show that the fire was set out by defendant’s engine, and that it burned plaintiff’s property, and that it started at the side of the tramroad and near to it, or at a trestle on the road where there were tree tops, grass, and other dry and combustible material, and that it burned over a large area of land. One witness stated that the engine passed him about one-half mile from where he first saw the smoke rising from the fire; and when he went to the place, it had burned some distance from the trestle. There was further evidence tending to show that defendant’s engine was the cause of the fire, but it is not necessary to recite it here in detail. The wind carried the fire from the tramroad to the dirt road, and all land between the two had been burned over, and some of the evidence tended to show, that the engine had passed the place shortly before the fire and smoke were first seen. The engine was seen to set out fire a week before this fire in question occurred. This testimony was objected to by defendant, and his objection was overruled by the court, and an exception taken upon the ground that there was no evidence that the engine was in the same condition on the two occasions. The witnesses for plaintiff stated that defendant’s right of way had not been burned off, but was very foul.

The defendant’s evidence tended to show that the fire was not started on its right of way, or by its engine, but that it originated elsewhere, and also that defendant had not been guilty of any negligence.

The jury returned a verdict for the plaintiff, and assessed his damages at $1,000. Judgment thereon for plaintiff; defendant appealed.

Fowler & Grumpier and G-eorge A. Smith for plaintiff.

Butler & Herring and H. E. Faison for defendant.

Walkee, J.,

after- stating the case: We will consider the exceptions in the order of their statement in the record :

The testimony of Martin Hairr and Susan H. Hairr was competent, and was properly admitted. The burden was upon the defendant to show that his engine was provided with a spark arrester, or other ap*132pliances, reasonably sufficient to prevent tbe escape of sparks or live coals from tbe smokestack, or tbe fire box, and tbis is rested upon tbe ground tbat tbe defendant necessarily bas, or should bave, peculiar knowledge of tbe facts, and is better informed as to tbe condition of bis engine operated on bis tramroad tban a plaintiff, wbo would generally be ignorant of it. Tbis Court, in Aycock v. R. R., 89 N. C., 329, stated tbe principle governing in sucb cases. In Aycock v. R. R., Chief Justice Smith, writing tbe opinion for tbe Court, cited R. R. v. Schultz, decided in 1880, and reported in 2 Am. & Eng. R. R. Cases, at p. 271, and notes, and tben said of it: “Tbe doctrine there announced by Gordon, J., is 'that if reasonable precautions are taken in providing them (tbe locomotives) with those appliances which are deemed best for tbe prevention of sucb damage (from fire communicated), tbe company, or persons using them, cannot be made liable, though they fire every rod of tbe country through which they run.’ Adding: ‘That tbe mere fact of tbe firing of a property will not of itself prove negligence, where it is shown tbat approved spark arresters were in use.’ A numerous array of cases is cited in tbe note in support of each side of tbe question, as to tbe 'party upon whom rests tbe burden of proof of tbe presence or absence of negligence, where only the injury is shown, in case of fire from emitted sparks. While tbe author favors tbe class of cases which imposes tbe burden upon tbe plaintiff, we prefer to abide by tbe rule so long understood and acted on in tbis State, tbat tbe burden of proof is upon tbe defendant, when it appears tbat tbe sparks, or coals, came from tbe engine, not alone because of its intrinsic merit, but because it is so much easier for those wbo do tbe damage to show tbe exculpating circumstances, if sucb exist, tban it is for tbe plaintiff to produce proof of positive negligence. Tbe servants of tbe company must know and be able to explain tbe transaction, while tbe complaining party may not; and it is but just tbat be should be allowed to say to tbe company, you bave burned my property, and if you are not in default show it, and escape responsibility. We therefore sustain tbe judge in tbis part of bis charge. Again, there was negligence in permitting tbe inflammable material in which tbe fire began to remain so near tbe track, and liable to ignite from emitted sparks. Troxler v. R. R., 74 N. C., 377; Whart. Neg., sec. 873; Thom. Neg., 162; Salmon v. R. R., 20 Am. Rep., 366, and note.” Tbat decision would seem to cover tbis ease completely in its principal points. It bas been cited and approved frequently in subsequent cases, and must govern our decision here. The most recent citation of it will be found in Cashwell v. Bottling Works, 174 N. C., 324-327, where we referred to it as follows: “In Simpson v. Lumber Co., 133 N. C., at pp. 101 and 102, we said: ‘Where tbe plaintiff shows damage resulting from tbe defendant’s act, which act, with *133tbe exercise of proper care, does not ordinarily produce damage, be makes out a prima facie case of negligence, wbicb cannot be repelled but by proof of care or of some extraordinary accident wbicb renders care useless,’ ” citing Aycock v. R. R., 89 N. C., 321; Lawton v. Giles, 90 N. C., 374; Piggot v. R. R., 54 E. C. L., 228; Craft v. Timber Co., 132 N. C., 151; Ins. Co. v. R. R., 132 N. C., 75. See, also, Moore v. Parker, 91 N. C., 275; Haynes v. Gas Co., 114 N. C., 203; Currie v. R. R., 156 N. C., 419; Kornegay v. R. R., 154 N. C., 392; Cox v. R. R., 149 N. C., 118; Simmons v. Lumber Co., 174 N. C., 220; Williams v. R. R., 140 N. C., 623; Fitzgerald, v. R. R., 141 N. C., 530-534; Stewart v. Carpet Co., 138 N. C., 60; Ross v. Cotton Mills, 140 N. C., 115; Womble v. Grocery Co., 135 N. C., 474. Besides, there was testimony of tbe plaintiff’s witnesses wbicb showed that tbe same engine bad cast sparks before, and this was some proof of its bad condition. Dail v. Taylor, 151 N. C., 284.

This case and Knott v. R. R., 142 N. C., 238, are much alike, as there it was held that tbe emissions of sparks from tbe smokestacks on former occasions, and near tbe time of tbe fire that did tbe damage complained of, was competent, and, besides, that if tbe smokestack was in good condition, and sparks fell upon a foul right of way and caused tbe fire, tbe railroad company was responsible in damages. Simpson v. Lumber Co., 133 N. C., 95; Troxler v. R. R., 74 N. C., 377; Craft v. Timber Co., 132 N. C., 151; Wise v. R. R., 85 Mo., 178, where it is said that in no view of tbe matter is it material to inquire bow tbe sparks happened to fall on tbe right of way if tbe latter was in bad condition, and that was tbe cause of tbe fire. See, also, Cox v. R. R., supra, and cases cited with it.' These exceptions cannot, therefore, be sustained.

Tbe testimony o'f K. A. Eobinson was properly excluded, because he proposed to speak solely of a statement, not only of a third person, but of a person who bad since died, wbicb was made to him. This was hearsay and incompetent, it having none of those safeguards required by tbe law for tbe maintenance of truth. Tbe same may be said of tbe testimony of Charlie Or ornar tie and T. E. Eowler.

Tbe other exceptions are merely formal.

Tbe court’s rulings were correct throughout, and we therefore affirm tbe judgment. ¡

No error.