#### C. B. PAGE v. CAMP MANUFACTURING COMPANY.

(Filed 10 November, 1920.)

'1. Courts — Discretion—Verdict Set Aside — Weight of Evidence — Motions —Appeal and Error.

Where there is evidence to sustain a verdict, objection that it should be set aside as against the clear preponderance of the testimony is a matter within the legal discretion of the trial judge, and his refusal to do so is not reviewable on appeal.

2. Railroads — Eires—Negligence—Evidence—Issues—Burden of Proof— Res Ipsa Uoquitur — Instructions.

Where, in an action to recover damages of a railroad for the negligence of the defendant in burning over plaintiff’s lands, there is evidence that the injury was caused by sparks from the defendant’s passing locomotive which started the conflagration, a 'prima facie case is established under the doctrine of res ipsa loquitur, and the burden of the issue remains with the plaintiff, the. prima facie case being only sufficient evidence to carry the case to the jury and to sustain a verdict in the plaintiff’s favor. An instruction to the jury which places upon the defendant the burden of satisfying the jury by a preponderance of the evidence that it was not negligent is error.

3. Same — Appeal and Error — Reversible Error.

It is reversible error for the trial judge- to instruct the jury, in effect, that the burden of the issue did not remain with the plaintiff, in his action against a railroad company for negligently setting out fire from its passing locomotive to the injury of his land, where applying the doctrine of res ' ipsa loquitur.

Appeal by defendant from Kerr, J., at March Term, 1920, of DupliN.

George R. Ward and Ward & Ward for plaintiff.

Stevens & Beasley for defendant.

"Walker, J.

Action for injuries to land caused by the negligent burning of tbe timber thereon. The fire, plaintiff alleged, originated from sparks emitted from one of the defendant’s engines, which had a defective smokestack and spark arrester. It is the same fire and same engine that caused the injuries for which the plaintiff, in Williams v. Camp Mfg. Co., 177 N. C., 512, recovered a judgment for damages, which was affirmed by this Court, as will appear from the reported case, supra, and after a careful study and comparison of the two cases we have been unable to.discover any substantial difference in respect of the facts between them. Mr. Stevens argued the case for the defendant very ably, and contended that there was some difference in the facts of the two cases, but our investigation has irresistibly led us to the opposite conclusion, and we find no such difference in the essential facts. The *331same principles which applied there are also applicable to this case, but there is an error in the charge of the court which prejudiced the defendant.

There was evidence that defendant’s engine set out the sparks which started the conflagration, and thereby damaged plaintiff’s timber and lands. It was not very strong or conclusive in its nature or its force, but rather inconclusive, and yet we cannot say there was no evidence of the fact in issue. The remedy for the false verdict, if it was false, was an application to the judge for relief by setting aside the verdict, as being against the clear preponderance of the testimony, and we presume this course was taken, and failed to have the desired effect. While the evidence presented a strong ease for the exercise of the power which resides in the judge, we cannot review the ruling by which he refused to disturb the verdict on this ground. It must therefore stand, unless there be reversible error in law, and we think there was such error.

Instead of charging the jury that when plaintiff made out -a prima facie case it was incumbent upon defendant to go forward with its evidence or take the risk of an adverse verdict, the court placed the burden upon the defendant to satisfy the jury by a preponderance of the evidence that it was not negligent. This was stating the principle of law much too strongly, and no doubt may have caused the jury to miscarry in their verdict upon the facts. ¥e have repeatedly stated the true rule as formulated by this and other Courts. The present Chief Justice expressed it very clearly and tersely in Shepard v. Tel. Co., 143 N. C., 244, where he held that though plaintiff has shown a prima facie case of negligence, it may be rebutted, but it is not necessary that the rebutting evidence of the defendant should preponderate, as the burden remains with the plaintiff throughout the case to establish negligence. He makes an apt quotation from 1 Elliott on Ev., sec. 13Y, which we approved, as follows: “The burden of the issue, that is, the burden of proof, in the sense of ultimately proving or establishing the issue or case of the party upon whom such burden rests, as distinguished from the burden or duty of going forward and producing evidence, never shifts, but the burden or duty of proceeding or going forward often does shift from one party to the other, and sometimes back again. Thus, when the actor has gone forward and made a prima facie case, the other party is in turn compelled to go forward or lose his case, and in this sense the burden shifts to him. So the burden of going forward may, as to some particular matter, shift again to the first party in response to the call of a prima facie case or presumption in favor of the second party. But the party who has not the burden of the issue is not bound to disprove the actor’s ease by a preponderance of the evidence, for the actor must fail if upon the whole evidence he does not have a preponder-*332anee, no matter whether it is because the weight of evidence is with the other party or because the scales are equally balanced.” And the Chief Justice then likens the principle to that prevailing in criminal cases by this very clear illustration. ¥e quote his language: “The burden of the issue as to the guilt of the prisoner, except where the law raises a presumption of law as distinguished from a presumption of fact, remains on the State throughout, and when evidence is offered (by defendant) to rebut the presumption of fact raised by the evidence (of the State), the burden is still on the State to satisfy the jury of the guilt of the prisoner upon the whole evidence. Notably, when the prisoner offers proof of an alibi, for example, which goes to the proof of the act. S. v. Josey, 64 N. C., 56.” He also says in that case that, “The burden of the issue as to negligence was upon the plaintiff. If no evidence had been offered in rebuttal, the court might have told the jury that if they believed the evidence to answer the issue ‘Yes.’ But when evidence was offered in rebuttal, it was not incumbent upon the defendant to disprove plaintiff’s case by a preponderance of testimony, but upon all the testimony it was the duty of the plaintiff to satisfy the jury by a preponderance of the evidence that the defendant was guilty of negligence. This has been recently discussed,” citing Board of Education v. Makely, 139 N. C., 35.

This would seem to be entirely sufficient to show the error of the learned judge in his charge, but the question has formerly been considered by this Court in Stewart v. Carpet Co., 138 N. C., 60, which has been approved and quoted from in Sweeny v. Erving, 228 U. S., 233, to this effect: There was much discussion by counsel of the doctrine of res ipsa loquitur and its relevancy to the facts of this case. “The thing speaks for itself” is a principle applied by the law where, under the circumstances shown, the accident presumably would not have occurred, in the use of a machine, if due care had been exercised, or, in the case of an elevator, when in its normal operation after due inspection. The doctrine does not dispense with the requirement that the party who alleges negligence must prove the fact, but relates only to the mode of proving it. The fact of the accident furnishes merely some evidence to go to the jury, which requires the defendant “to go forward with his proof.”

“The rule of res ipsa loquitur does not relieve the plaintiff of the burden of showing negligence, nor does it raise any presumption in his favor. Whether the defendant introduces evidence or not, the plaintiff in this case will not be entitled to a verdict unless he satisfies the jury by the preponderance of the evidence that his injuries were caused by a defect in the elevator, attributable to the defendant’s negligence. The law attaches no special weight, as proof, to the fact of an accident, but *333simply bolds it to be sufficient for tbe consideration of tbe jury, even in tbe absence of any additional evidence.” Womble v. Grocery Co., 135 N. C., 474; 2 Labatt on Master and Servant, sec. 834; 4 Wigmore on Evidence, sec. 2509. In all other respects tbe parties stand before tbe jury just as if -there was no such rule. Tbe judge should carefully instruct tbe jury as to tbe application of tbe principle, so that they will not give to tbe fact of tbe accident any greater artificial weight than tbe law imparts to it. Wigmore, in tbe section just cited, says tbe following considerations ought to limit tbe doctrine of res ipsa loquitur: (1) Tbe apparatus must be such that in tbe ordinary instances no injurious operation is to be expected, unless from a careless construction, inspection, or user; (2) both inspection and user must have been, at tbe time of tbe injury, in tbe control of tbe party charged; (3) tbe injurious occurrence must have happened irrespective of any voluntary action at tbe time -by tbe party injured. He says further that tbe doctrine is to some extent founded upon tbe fact that tbe chief evidence of tbe true cause of tbe injury, whether culpable or innocent, is practically accessible to tbe party charged, and perhaps inaccessible to tbe party injured. What are tbe general limits of tbe doctrine, and what is tbe true reason for its adoption, we will not now undertake to decide. It is established in tbe law as a rule for our guidance, and must be enforced whenever applicable, and to tbe extent that it is applicable to tbe fac;ts of tbe particular case.

It was said in Sweeney v. Erving, 228 U. S., 233-240: “In our opinion, res ipsa loquitur means that tbe facts of tbe oecurrent warrant tbe inference of negligence, not that they compel such an inference; that they furnish circumstantial evidence of negligence where direct evidence of it may be lacking, but it is evidence to be weighed, not necessarily to be accepted as sufficient; that they call for explanation or rebuttal, not necessarily that they require it; that they make a case to be decided by tbe jury, not that they forestall tbe verdict. Bes ipsa loquitur, where it applies, does not convert tbe defendant’s general issue into an affirmative defense. When all tbe evidence is in, tbe question for tbe jury is whether tbe preponderance is with tbe plaintiff.”

Kay v. Metropolitan St. Ry. Co., 163 N. Y., 447, was an action by passenger against carrier, and tbe New York Court of Appeals said (p. 453) : “In tbe case at bar tbe plaintiff made out her cause of action prima facie by tbe aid of a legal presumption (referring to res ipsa loquitur), but when tbe proof was all in tbe burden of proof bad not shifted, but was still upon tbe plaintiff. ... If tbe defendant’s proof operated to rebut tbe presumption upon which tbe plaintiff relied, or if it left tbe essential fact of negligence in doubt and uncertainty, tbe party who made that allegation should suffer, and not her adversary. *334Tbe jury were bound to put tbe facts and circumstances proved by tbe defendant into tbe scale against tbe presumption upon wbicb tbe plaintiff relied, and in determining tbe weight to be given to tbe former as against tbe latter, tbey were bound to apply tbe rule tbat tbe burden of proof was upon tbe plaintiff. If, on tbe whole, tbe scales did not preponderate in favor of tbe presumption and against defendant’s proof, tbe plaintiff bad not made out her case, since she bad failed to meet and overcome tbe burden of proof.” Tbe rule thus declared has since been adhered to in tbe Courts of New York. Hollahan v. Metropolitan St. Ry. Co., 73 N. Y. App. Div., 164, 169; Adams v. Union Ry. Co., 80 N. Y. App. Div., 136, 139; Dean v. Tarrytown, etc., R. Co., 113 N. Y. App. Div., 437, 439. A similar view appears to be entertained in New Hampshire. Hart v. Lockwood, 66 N. H., 541; Boston & Maine R. Co. v. Sargent, 72 N. H., 455, 466. Tbe same rule has been followed in a recent series of cases in tbe North Carolina Supreme Court. Womble v. Grocery Co., 135 N. C., 474, 481, 485; Stewart v. Carpet Co., 138 N. C., 60, 66; Lyles v. Carbonating Co., 140 N. C., 25, 27; Ross v. Cotton Mills, 140 N. C., 115, 120; 1 L. R. A. (N. S.), 298, 301.” And again: “Tbe general rule in actions of negligence is tbat tbe mere proof of an ‘accident’ (using tbe word in tbe loose and popular sense) does not raise any presumption of negligence; but in tbe application of this rule it is recognized tbat there is a class of cases where tbe circumstances of tbe occurrence tbat has caused tbe injury are of a character to give ground for a reasonable inference tbat if due care bad been employed by tbe party charged with tbe care in tbe premises tbe thing tbat happened amiss would not have happened. In such cases it is said, res ipsa loquitur — tbe thing speaks for itself; tbat is to say, ,if there is nothing to explain or rebut tbe inference tbat arises from tbe way.in wbicb tbe thing happened, it may fairly be found to have been occasioned by negligence. Tbe doctrine has been so often invoked to sustain tbe refusal by'trial courts to nonsuit tbe plaintiff or direct a verdict in favor of tbe defendant, tbat tbe application of tbe rule, where it does apply, in raising a question for tbe jury, and thus making it incumbent upon tbe defendant to adduce proof if be desires to do so, has sometimes been erroneously confused with tbe question of tbe burden of proof.” To wbicb may be added, S. v. Wilkerson, 164 N. C., 432, and tbe cases therein cited, and Cox v. R. R., 149 N. C., 117; Aycock v. R. R., 89 N. C., 331 (Anno. Ed.) ; Knott v. R. R., 142 N. C., 242 (tbe last three being for burning timber) ; Shaw v. Public Service Co., 168 N. C., 611, and Ridge v. R. R., 167 N. C., 510, tbe last case having been affirmed by tbe Supreme Court of tbe United States, upon a writ of error to this Court.

*335Tbe result of all tbe decisions upon tbe question is tbat tbe plaintiff’s prima facie showing merely carries tbe case to tbe jury, and upon it alone tbey may decide for bim, but tbey are not compelled to do so, and wbetber there is evidence on both sides, or only on tbe plaintiff’s, tbe latter has tbe burden of proving negligence.

Such, we think, is tbe view generally taken of tbe matter in all well considered judicial opinions.

It will be seen, therefore, tbat tbe rule as to tbe burden of proof is well settled with us against tbe charge by tbe judge to tbe jury in this case, and for this error there must be another trial.

It is true tbat expressions are to be found in some of our cases, filtered there from two or three cases based on tbe English rulé, which justified bis Honor’s charge, but since tbey were decided we have adhered to tbe true and correct rule, which is stated in Stewart v. Carpet Co., supra; Womble v. Grocery Co., supra; Cox v. R. R., supra; Shepard v. Tel. Co., supra, and many other cases, and which we have applied in this case, tbe substance of which is tbat tbe burden to prove bis case is always on tbe plaintiff, wbetber tbe defendant introduces evidence or not. "Where we have said “it is tbe duty of tbe defendant to go forward with bis proof,” it was only meant in tbe sense tbat if be expects to win it is bis duty to do so or take tbe risk of an adverse verdict, and not tbat any burden of proof rested upon bim. He pleads no affirmative defense but tbe general issue, and this puts tbe burden throughout tbe case on tbe plaintiff, who must recover, if at all, by establishing bis case by tbe greater weight of evidence. Tbe Supreme. Court of tbe United States has so stated tbe rule, and it referred with approval to our cases above cited. We say this much again, in tbe hope tbat tbe rule, as. we have stated it, may hereafter be considered as tbe correct one.

Tbe other exceptions, while earnestly presented before us, need not be considered, as tbey are without any merit.

New trial.