#### N. F. DICKERSON et al. v. NORFOLK SOUTHERN RAILROAD COMPANY and JAMES K. DAUGHERTY, and HOME INSURANCE COMPANY et al. v. NORFOLK SOUTHERN RAILROAD COMPANY and JAMES K. DAUGHERTY.

(Filed 21 October, 1925.)

Negligence — Railroads—Fires—Prima Facie Case — Evidence—Nonsuit.

A prima facie case of negligence is made out in an action to recover damages against a railroad company for setting out a fire by its passing trains that destroyed a warehouse and its contents of plaintiffs situated off its right of way, when upon direct or circumstantial evidence it is sufficiently shown that a spark from the train resulted in the fire complained of, and not by circumstance remote as to time and place, which under the evidence in this case are held insufficient; and Held, defendant’s motion as of nonsuit was properly allowed.

Stacy, C. J., dissents.

Appeal by plaintiffs from Barnhill, J., February Term, 1925, of Cea vest.

Affirmed.

Certain actions pending in the Superior Court of Craven County against Norfolk Southern Eailroad Company and James K. Daugherty, instituted by N. F. Dickerson and others, owners of a pack house and *293a large quantity of tobacco stored therein, destroyed by fire on 3 November, 1920, and by certain insurance companies, which had paid to the owners of said property sums of money due under policies of insurance issued by them, were consolidated for trial. It was alleged in the complaints in said actions that the fire which destroyed said pack house and tobacco was set out by the negligence of defendants. This allegation was denied in answers filed by defendants. At the close of all the evidence, motion for judgment as of nonsuit was allowed. Plaintiffs excepted. From judgment in accordance with said motion, plaintiffs appealed. The only assignment of error upon appeal is based upon the exception of plaintiffs to the judgment of nonsuit.

Manning & Manning, Ward & Ward, E. M. Green and D. L. Ward for plaintiffs.

Moore & Dunn for defendants.

CoNNOR, J.

A pack house, owned by N. F. Dickerson, in which was stored a large quantity of tobacco, owned by Dickerson and his tenants, was destroyed by fire on 3 November, 1920. Certain insurance companies, which had issued policies of insurance on said property, paid to Dickerson and his tenants the amounts, for which they were severally liable, under said policies, by reason of the destruction of said property by fire.

On 2 June, 1923, Dickerson and his tenants commenced an action against defendants for the recovery of damages sustained by them because of the destruction of said pack house and tobacco. They allege that the property destroyed was of the value of about $30,000; that they received from insurance companies, on account of said loss, about $11,000 in settlement of the amounts due on policies covering said property; they demand judgment against defendants for the difference between the value of the property destroyed and the amount received by them from the insurance companies.

The insurance companies thereafter commenced actions against defendants in which they allege that prior to 3 November, 1920, they had severally issued policies of insurance to N. F. Dickerson and his tenants, insuring them against all direct loss by fire, said policies covering the pack house and tobacco stored therein; that by reason of the destruction of said property by fire, on 3 November, 1920, they became severally liable to the owners of said property in various amounts which they have paid; that by the provisions of their several policies, they have become subrogated to the rights of the owners of said property to recover damages from the person or persons who are liable for the same to the extent of the amounts severally paid by them. They *294demand judgment against defendants for tbe amounts severally paid by them to N. F. Dickerson and his tenants.

Plaintiffs, in their several complaints, allege that on 3 November, 1920, defendant, Norfolk Southern Railroad Company, by and through its engineer, James K. Daugherty, was operating an engine and log cars on the spur track running from its main track, near the said pack house, to Munger & Bennett’s Mill, on Trent River, at James City, that while so operating said engine and cars, defendants negligently permitted said engine to emit sparks and coals of fire therefrom which fell upon and set fire to said pack house and tobacco, causing the complete destruction of same; that defendants so operated said engine without a spark arrester, or with a defective spark arrester; that the engineer was negligent and incompetent, and operated the engine in a negligent manner. .

Defendants, in their answers, denied all allegations of negligence..

The evidence offered by plaintiffs with respect to the origin of the fire which destroyed the pack house and its contents, was as follows:

F. A. Fulcher testified that he is a surveyor and that at the request of plaintiff, N. E. Dickerson, during October, 1924, he made a survey of the Norfolk Southern switch track extending from its main track to Munger & Bennett’s Mill; that Mr. Dickerson showed him the location of the pack house, which was burned 3 November, 1920; the distance from the nearest point of the location of the pack house, as shown him by Mr. Dickerson, to the switch track was eighty-one feet; at this point the pack house was north of the switch track; this track was in a curve all the way from the main track to the mill-yard. It was located not far from the public road., There were other houses located in there, along the public road. The houses on the east side of the road are negro shacks. Munger & Bennett’s Mill is located near the river, about a quarter of a mile to the north of where the pack house was located; in addition to their mill they have, and operate, a planing mill. In both mills there are a number of boilers and smoke-stacks.

N. F. Dickerson testified that on the afternoon of 3 November, 1920, the wind was blowing about northeast; that he saw the engine of defendant shifting on the switch track, passing the pack house, from Munger & Bennett’s Mill to the Clark Lumber Company’s plant; black smoke, coming from the engine, was blown across the pack house; the train switched in there for from a half to three-quarters of an hour. 'Witness saw the engine shifting between 4 and 4:30 p. m.; he saw only one train on the switch track that afternoon; he was at work during the afternoon about 250 feet from the pack house; he left the *295farm some time before dark — between a quarter to and a quarter past 5 o’clock. Tbe last place witness was in before leaving tbe farm was tbe pack-bouse yard. There was no fire i* or about tbe pack bouse during tbe day.

Witness first beard of tbe fire when some one called him on tbe phone at bis borne in New Bern; be went at once, by automobile, to tbe pack bouse; when be got there tbe fire was burning on tbe roof. There was no fire below. Tbe pack bouse and tobacco were completely destroyed.

There was no arrangement of any kind in tbe pack bouse for fire. There was no chimney, fireplaces or flues. Tbe pack bouse bad a shingle roof. It was located about 50 or 60 feet from tbe public road leading into New Bern.

Mrs. Sadie Dickerson, sister-in-law of N. F. Dickerson, testified that she lived in James City, a settlement across tbe river from New Bern, not very far from tbe pack bouse; she saw tbe fire about 6 o’clock, after her family bad bad supper. It was then burning on top, about middle way, very rapidly. She saw tbe Norfolk Southern shifter that afternoon, on tbe switch track, between a quarter to 5 and 5 o’clock. Tbe smoke from tbe shifter was going toward tbe pack bouse. Tbe side of tbe roof next to tbe track was burning when she first saw tbe fire.

N. L. Dickerson, husband of Mrs. Sadie Dickerson, testified that be bad not been on tbe farm where tbe pack bouse was located that day. He got borne about 5 :30 or a quarter to 6. His wife called him when she saw tbe fire, about 6 or quarter past 6 o’clock. He went at once to tbe fire and found tbe roof of tbe pack bouse burning on top, next to tbe railroad. Tbe wind was blowing from tbe northwest. It was burning a pretty good blaze when be got there.

J. T. Cherry, one of tbe tenants who bad tobacco in tbe pack bouse, testified that be went to tbe farm on which tbe pack bouse was located, at about 8 a. m. on 3 November, 1920; that be took tobacco out of tbe pack bouse about 12 o’clock, to tbe grading shed; that be remained on tbe farm until a little before sundown. There was no fire there when be left. Witness saw tbe train on tbe switch track during tbe afternoon and observed heavy, black smoke coming from tbe engine and passing over tbe pack bouse. He knew nothing of tbe fire until next morning.

W. T. Messic, another tenant who bad tobacco in tbe pack bouse, testified that be was eating supper between 5:30 and 6 o’clock when be first discovered tbe fire. He lived about 300 yards from tbe pack bouse. Tbe fire was on tbe side next to tbe railroad. Witness saw the- shifter on tbe switch track that afternoon, about 4 o’clock. A lot of black smoke was coming from tbe engine and going in tbe direction of tbe *296pack bouse. He went to tbe fire. It was burning pretty rapidly wben be got there. If tbe roof bad been on fire wben be left to go to supper be would bave seen it. He., looked at tbe pack bouse after tbe engine passed it. He bad been borne long enough to eat supper before tbe alarm of fire was given.

Albert Spivey testified that be lived in James City on 3 November, 1920, tbe day of tbe fire; that be saw tbe shifter in tbe mill yard of Munger & Bennett between 3 and 4 o’clock that afternoon; that be crossed tbe track and saw smoke coming from tbe engine; there were dead cinders in the' smoke, which went in tbe direction of tbe pack bouse. When be saw tbe fire be bad eaten supper and was out in tbe street in James City. He left Munger & Bennett’s Mill before 5 :30 p. m.

There was much evidence as to tbe quantity and quality of tbe tobacco stored in tbe pack bouse and destroyed by fire.

Defendant’s motion for judgment of nonsuit, made at tbe close of plaintiff’s evidence, was reserved by tbe court until tbe conclusion of all tbe evidence.

Defendants offered evidence as follows:

James K. Daugherty testified that be was employed during 1920 as an engineer by Norfolk Southern Railroad Company; that prior to 3 November, 1920, be bad operated yard engine No. 6 for about 130 days, and since said date, for 12 or 18 months. On 3 November, 1920, witness went on duty at 1 p. m., and took said engine, with one car, to Munger & Bennett’s Mill; be got back from James City about 2 o’clock, bringing one car from tbe mill. He did not operate an engine on tbe switch track on that day after 2 o’clock. Between 6 and 7 o’clock p. m., while at Trent River, be saw tbe fire at tbe pack bouse. His engine was not throwing sparks on 3 November, 1920. Tbe condition of tbe spark arrester on tbe engine on that day was good. It was equipped with a spark arrester. Green, new coal burned in an engine causes black smoke.

Sam Brock, fireman on engine No. 6, testified that be went with Mr. Daugherty on said engine on 3 November, 1920, to James City. They went over there about 1 o’clock with one box car, and made a switch in Munger & .Bennett’s yard; they got back to New Bern at about 2 o’clock and did not go back that day. No shifting was done that day near tbe pack bouse. Tbe engine was not throwing sparks that day.

Witness fired bis engine after be left New Bern, and while he was over tbe river at Munger & Bennett’s Mill. He covered tbe fire with fresh coal, which made a lot of smoke, but no sparks. He kept up enough steam while on tbe switch track to pull one car. Tbe engine passed tbe pack bouse between 1 and 2 o’clock. Tbe engine was inspected every day.

*297Roy Perry, yard conductor for Norfolk Southern Railroad, testified that he was in charge of engine No. 6 on 3 November, 1920; they left New Bern on that day about 1 o’clock; went to Munger & Bennett’s, carrying and bringing back one car; it took about 15 or 20 minutes to do the work at the mill on that day. The train passed the pack house going in and coming out; no switching was done near the pack house. Witness operated engine No. 6 about six years; never saw it throw sparks.

Will White, brakeman, testified that on 3 November, 1920, they left New Bern about 1 o’clock, remained in James City ten or fifteen minutes, and got back to New Bern at about 2 o’clock; carried over one car and brought back one car. Witness rode on top of the car and did not feel or see any sparks from the engine. The smoke was coming right over him.

Mr. Sanders, yard master, testified that he had control and direction of all shifting engines in the yard. The record in witness’ office shows that on 3 November, 1920, one car of lumber was placed at Munger & Bennett’s yard, and one car pulled out. The crew on engine No. 6 came on duty at 1 o’clock. Witness directed them to go to James City. Only engine No. 6 was sent to James City that day. It was back in New Bern at 2 o’clock.

Witness had known James K. Daugherty for 17 years. His general reputation and character is good. There is no better engineer than Mr. Daugherty.

O. H. Hill testified that he is a boiler maker ; on 2 November, 1920, witness examined engine No. 6; also examined it on 3 and 4 November and subsequent days; that it was in good condition; no repairs made to either spark arrester or ash pan. Witness inspected engine No. 6 on 10 October, 1920, and then patched the spark arrester and ash pan. After these patches had been put on the engine was as good as new.

Harvey Kehoe, general foreman of Norfolk Southern shops for 13 years prior to 1921, testified that he had known James K. Daugherty since 1906; that his general character and reputation was good; that his capacity as an engineer was good; he was a competent engineer. Witness had operated a locomotive engine for about thirty-eight years; black smoke is caused by green coal — absolutely no sparks in it.

Howard Bobbitt, road foreman of engines for defendant railroad company, testified that engine No. 6 received general repairs in April, 1920; on 3 November, 1920, its condition was good, as good as a new engine.

At the conclusion of all the evidence, the court being of opinion that there was not sufficient evidence of negligence to be submitted to the *298jury, upon defendant’s motion, dismissed tbe action as upon a non-suit, under C. S., 567.

Applying to this evidence tbe rule well settled for tbe consideration of evidence upon a motion for judgment of nonsuit, Lindsey v. Lumber Co., 189 N. C., 118, tbe following facts may be found therefrom:

1. Tbe pack bouse and tobacco stored therein, located at a distance of 81 feet from tbe switch track of tbe Norfolk Southern Railroad Company, and of 50 to 60 feet from tbe public road, leading into James City, were destroyed by fire on 3 November, 1920;

2. Engine No. 6, used in and about New Bern by defendant railroad company as a shifter or switch engine, during tbe afternoon of said day, entered upon tbe switch track, and carried one car to tbe Munger & Bennett Mill, at tbe end of said switch track; it passed tbe pack bouse and while on tbe track was shifting or switching for about a half to three-quarters of an hour; it passed tbe pack bouse on its return from tbe mill, with one car, to New Bern; while thus engaged tbe engine put out heavy, black smoke, with dead cinders, which was blown by a strong wind across to and over tbe pack bouse; there is no testimony that tbe engine emitted sparks or live coals while passing or repass-ing tbe pack bouse.

3. Tbe engine was on the switch track not later than 4:30 or 5 p. m.; fire was first discovered, burning on tbe top of tbe pack bouse, near tbe middle, on tbe side next to tbe track, at about 6 p. m.; a strong wind was blowing and tbe fire on tbe shingle roof was burning rapidly in a blaze; tbe building and contents were quickly consumed by tbe fire, making a total loss.

4. Engine No. 6 was tbe only engine which defendants, Norfolk Southern Railroad Company, operated on tbe switch track, passing by tbe pack bouse, during tbe afternoon of 3 November, 1920; it bad been repaired in April, 1920, and was then as good as a new engine; it was equipped with a spark arrester which, with tbe ash pan, bad been patched on 10 October, 1920; it was inspected on 2 and 3 November, 1920, and was in good condition; it did not throw out or emit sparks. James K. Daugherty, in charge of said engine, was a competent engineer; tbe heavy, black smoke was caused by tbe fireman putting fresh coal on tbe fire in tbe engine while it was at tbe Munger & Bennett Mill; tbe engine, at no time during tbe afternoon, while on tbe switch track, was pulling more than one car; only sufficient steam was kept up for this purpose.

There is no direct evidence from which tbe jury could find that sparks emitted by defendant’s engine set fire to tbe pack bouse; tbe facts and circumstances, which tbe jury could have found from tbe evidence, *299under correct instructions from tbe court are not sufficient to support the inference that the fire originated from such sparks. The facts that the engine passed and repassed a point on the track 81 feet from the pack house, and at the time was putting out a heavy, black smoke, which the wind blew over to and across the pack house, were not sufficient to support a finding, as a fact, that the fire discovered on the shingle roof, burning rapidly in a blaze, nearly an hour thereafter, during which a strong wind was blowing, was caused by sparks emitted from the engine as alleged in the complaint.

In Moore v. R. R., 173 N. C., 311, Justice Brown says: “It is undoubtedly true that the fact in controversy here, as to the origin of the fire, may be established by circumstantial evidence, but the circumstances proven must have sufficient probative force to justify a jury in finding that the fire originated from a spark from defendant’s engine before the issues can be submitted to them.”

The rules applicable in actions to recover damages caused by injury or destruction of property, by fire, upon allegations of negligence, formulated by Chief Justice Clark in Williams v. R. R., 140 N. C., 623, and approved by Justice Walker in Aman v. Lumber Co., 160 N. C., 369 as just, are each predicated upon the fact that the fire, which injured or destroyed the property, escaped from defendant’s engine. Until that fact has been established by evidence, no prima facie case is made for plaintiff. In the instant case, as in Moore v. R. R., supra, the building burned was located on the side of the railroad, off the right of way, the wind was blowing from the railroad toward the building. The fire, when discovered, was burning on the side of the building next to the railroad. An engine had passed not less than thirty minutes or more than an hour before the fire was discovered. There was no evidence that the engine, which passed the building before the fire was discovered, was throwing sparks, nor was there evidence that fire had burned from the track to the building. Defendants’ evidence established the facts that the engine was equipped with a spark arrester, in good condition, and that the engineer in charge was competent and was operating the engine in a skillful manner.

In Boney v. R. R., 175 N. C., 354, there was evidence that the passing engine was throwing sparks and the refusal of the motion to non-suit was sustained by this Court. Justice Soke, in the opinion of the Court, distinguishes Moore v. R. R., supra, from Boney v. R. R., saying that in the Moore case there was no evidence offered that sparks were thrown from the engine or that same was in any way defective, whereas there was such evidence in the Boney case.

In Bailey v. R. R., 175 N. C., 699, the refusal of the motion of non-suit was sustained because there was evidence from which the jury could *300fairly and reasonably infer and conclude tbat the engine emitted sparks or live coals which fell upon defendant’s right of way, which was in a foul and inflammable condition, and started the fire which burned plaintiff’s property.

In Perry v. Mfg. Co., 176 N. C., 70, Justice Walker, approving the charge of the court below, that if the fire was caused by defendant’s engine emitting sparks or coals, which fell upon plaintiff’s land and caused the fire, the burden would be shifted to defendant to show that the fire was not due to any defective condition of its engine, or to any negligence in its management or operation, says: “There was ample evidence to show that the fire was caused by defendant’s engine.” See, also, Bradley v. Mfg. Co., 177 N. C., 153; Williams v. Mfg. Co., 177 N. C., 512. The instruction to the jury in the latter case was held subject to criticism, but not reversible error; there was evidence of other facts than those embodied in the instruction assigned as error tending to show that the fire originated from sparks emitted by the engine. Justice Walker says: “The fact that a spark from the engine caused the fire, whether on or off the right of way, is evidence of negligence, though not conclusive.”

In Cotton Oil Company v. R. R., 183 N. C., 95, Justice Adams says in the opinion for the Court, discussing the effect of a prima facie case for the plaintiff: “When the plaintiffs proved that the property had been destroyed by fire escaping from 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 defendant the burden of rebutting the prima facie case by the preponderance of the evidence and standing alone, the prima facie ease 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.” White v. Hines, 182 N. C., 288; Speas v. Bank, 188 N. C., 524; Hunt v. Eure, 189 N. C., 482.

In the instant case there is no evidence from which the jury could find, or fairly and reasonably infer and conclude the fact, which under our decisions, would make a prima facie case, to wit, that the fire which destroyed the pack house and its contents was caused by sparks or live coals emitted by defendant’s engine. The evidence, if submitted to the jury, would leave them to conjecture and speculate as to the origin of the fire; this is not sufficient. Whittington v. Iron Co., 179 N. C., 647; S. v. Bridgers, 172 N. C., 879; Liquor Co. v. Johnson, 161 N. C., 75; Lewis v. Steamship Co., 132 N. C., 904. In the latter case this Court approved the rule that evidence which merely shows it *301possible for tbe fact in issue to be as alleged, or wbieb raises a mere conjecture tbat it is so, is an insufficient foundation for a verdict and should not be left to tbe jury.

There was no error in allowing tbe motion to dismiss tbe action as upon nonsuit. The judgment is

Affirmed.

Stacy, C. J., dissents.