#### BERTIE COTTON OIL COMPANY et al. v. ATLANTIC COAST LINE RAILROAD COMPANY et al.

(Filed 1 March, 1922.)

1. Railroads — Burnings—Negligence—Sparks from Locomotive — Evidence —Prima Eacie Case — Questions for Jury — Trials—Nonsuit.

A prima facie case of negligence is established against a railroad when it is shown that a spark escaping from its locomotive burned plaintiff’s property.

3. Same — Instructions—Appeal and Errol* — Prejudicial Error.

When such prima facie case is made out, it is sufficient, nothing else appearing, to warrant a finding for the. plaintiff on the issue as to negligence, but it is not conclusive. The defendant may or may not introduce evidence in rebuttal at his election; but the defendant is not required to disprove negligence on its part. Throughout the trial the burden of the issue remains with the plaintiff.

Appeal by defendant from Calvert, J., at August Term, 1921, of Beetle.

Civil action to recover damages for tbe negligent burning of plaintiff’s s.eed-bouse and contents. Certain insurance companies, wbo claimed to be subrogated to tbe rights of tbe insured, were made coplaintiffs. Tbe jury found tbat tbe property of tbe Bertie Cotton Oil Company bad been burned by ’ tbe negligence of tbe defendant, and assessed damages.

J ames S. Manning and, Winston & Matthews for plaintiffs.

F. S. Spruill and Gillam <& Davenport for defendant.

Adams, J.

Tbe defendant excepted to tbe following paragraph in bis Honor’s instructions to tbe jury: “As to tbe burden of proof on tbe first question, as to bow tbe fire started, tbe burden is on tbe plaintiff to satisfy tbe jury from tbe evidence, and by its greater weight, tbat tbe property was set on fire by live sparks from tbe locomotive; if tbe jury should not so find, then you will answer tbe first issue ‘No’; but if you do so find tbat, if tbe property was set on fire by live sparks from tbe locomotive, then tbe burden of proof shifts to tbe defendant to satisfy you by tbe evidence, and by its greater weight, tbat it used a -competent and skillful engineer, and tbat tbe condition of tbe spark •arrester was good, and if you so find you will answer this issue No’; -otherwise, ‘Yes.’ ” There are several decisions of this Court in which similar instructions have been approved. These are represented by Grant v. R. R., 108 N. C., 467, and Denny v. R. R., 179 N. C., 533. There are numerous decisions in which tbe instruction has been dis*96approved. These are represented by Williams v. R. R., 130 N. C., 128; Shepard v. Tel. Co., 143 N. C., 245; Stewart v. Carpet Co., 138 N. C., 66; Winslow v. Hardwood Co., 147 N. C., 276; Overcash v. Electric Co., 144 N. C., 577. The decisions are conflicting.

When the plaintiffs proved that the property had been destroyed by fire escaping from the defendant’s locomotive, they made a prima facie-case of negligence for the consideration of the jury; or, as Mr. Justice Pitney says, such proof furnished circumstantial evidence of negligence; but it did not impose upon the defendant the burden of rebutting the prima facie case by the preponderance of the evidence. Sweeney v. Erving, 228 U. S., 233. The principle upon which this jiroposition rests has been stated as follows: “The burden of the issue, that is, the burden of proof in the sense of 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 ease, the other party is compelled in turn 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 id arty. But the party who has not the burden of the issue is not bound to disprove-the actor’s case by a preponderance of the evidence, for the actor must fail if upon the whole evidence he does not have a preponderance, no-matter whether it is because the weight of evidence is with the other-party or because the scales are equally balanced.” 1 Elliott on Evidence,. 139. Standing alone, the prima facie case warranted but did not. compel the inference of negligence; it furnished evidence to be weighed, but not necessarily to be accepted; it made a case to be decided by the-jury, but did not forestall the verdict. Sweeney v. Erving, supra.

Recognizing the inconsistent and conflicting expressions in several of' the decisions and the confusion that necessarily resulted, we undertook in a recent decision to review some of the cases in which the burden of proof is discussed -for the purpose of formulating, or rather of restating the approved principle. White v. Hines, 182 N. C., 288. As there stated the rule is this: “After the plaintiff has established a prima facie case of negligence, if no other evidence is introduced, the jury will be fully warranted in answering the issue as to negligence in favor of the-plaintiff, but will not be required to do so as a matter of law. When such prima facie case is made, it is incumbent upon the defendant to-offer proof in rebuttal of the plaintiff’s case, but not to the extent of *97preponderating evidence. The defendant, however, is not required as a matter of law to produce evidence in rebuttal; he may decline to offer evidence at the peril of an adverse verdict. If he offer evidence, the plaintiff may introduce other evidence in reply, and the jury.will finally determine whether the plaintiff is entitled by the greater weight of all the evidence to an affirmative answer to the issue; for throughout the trial the burden is upon the plaintiff to show by the greater weight of the evidence that he is entitled to such answer.” In that case it is further said, “After all the evidence is introduced, the vital question is not whether the defense specifically relied on is established to the entire satisfaction of the jury, but whether on the issue of negligence the evidence preponderates in favor of the plaintiff, and by this test the answer to the issue is to be determined.” By the application of this principle the more recent decisions of this Court have been made to harmonize with the greater weight of authority on the question. It will be observed that in the instruction excepted to his Honor did not refer to the burden of the issue, but only to the burden of proof which was referred in the first instance to the plaintiff and afterward to the defendant.

His Honor very properly denied the motion for nonsuit, but we are of opinion that the defendant is entitled to a new trial for error in imposing on the defendant a burden beyond that which is required by law.

New trial.