{ "id": 8610888, "name": "SADIE BINGHAM GRINNAN, Trustee, v. SOUTHERN RAILWAY COMPANY", "name_abbreviation": "Grinnan v. Southern Railway Co.", "decision_date": "1953-10-21", "docket_number": "", "first_page": "432", "last_page": "435", "citations": [ { "type": "official", "cite": "238 N.C. 432" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "73 S.E. 2d 544", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "236 N.C. 568", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626973 ], "opinion_index": 0, "case_paths": [ "/nc/236/0568-01" ] }, { "cite": "92 S.E. 1", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "173 N.C. 311", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11269960 ], "opinion_index": 0, "case_paths": [ "/nc/173/0311-01" ] }, { "cite": "42 A.L.R. 795", "category": "reporters:specialty", "reporter": "A.L.R.", "opinion_index": 0 }, { "cite": "87 S.E. 985", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "171 N.C. 111", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11269242 ], "opinion_index": 0, "case_paths": [ "/nc/171/0111-01" ] }, { "cite": "139 S.E. 760", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "194 N.C. 374", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8608699 ], "opinion_index": 0, "case_paths": [ "/nc/194/0374-01" ] }, { "cite": "70 S.E. 737", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "154 N.C. 384", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8652465 ], "opinion_index": 0, "case_paths": [ "/nc/154/0384-01" ] }, { "cite": "126 N.C. 797", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8662527 ], "opinion_index": 0, "case_paths": [ "/nc/126/0797-01" ] }, { "cite": "86 S.E. 998", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "170 N.C. 94", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8657331 ], "opinion_index": 0, "case_paths": [ "/nc/170/0094-01" ] } ], "analysis": { "cardinality": 429, "char_count": 7774, "ocr_confidence": 0.493, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.20715918186735982 }, "sha256": "bfd45a620206254ccf02f6b8dd171b65673eca1a715e952c069db6c7060f9f84", "simhash": "1:13a507d61acab792", "word_count": 1377 }, "last_updated": "2023-07-14T17:58:50.226870+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "SADIE BINGHAM GRINNAN, Trustee, v. SOUTHERN RAILWAY COMPANY." ], "opinions": [ { "text": "Barnhill, J.\nIn view of plaintiff\u2019s evidence tending to show that the fire had burned over a half acre of plaintiff\u2019s land when her caretaker arrived, \u201cand was bounding up pretty high,\u201d and yet it had not burned through the three feet of thick, high grass and weeds between the freshly burned fusee and the \u201cchat\u201d at the end of the railroad crossties, and the burned area was very narrow at the fusee, the defendant contends the evidence will not support the conclusion the fire originated at the freshly burned fusee; that there was evidence that fusees which had not burned were found along the track and the freshly burned fusee found by Hagan was one of these, burned by the fire which spread from the hill, where it originated, to the railroad right of way.\nWe may concede there is considerable force in this argument. Yet we need not rest decision on this testimony, for there is a fatal defect in plaintiff\u2019s evidence in another respect. There is no evidence tending to show that any employee of defendant put out a fusee within the burned area on defendant\u2019s right of way at or near the time the fire was diseov-ered. Nor is there any evidence a train of defendant stopped at or near the burned area on the right of way at any time on the morning prior to the fire.\nProof that a train stopped at the scene just prior to the fire coupled with the testimony tending to show That trains customarily stopped there and put out fusees as a warning to the crews of other trains before proceeding into the railroad yards might \u2014 as in case of a train discharging live sparks onto a foul right of way \u2014 make out a prima facie case for plaintiff. This we need not now decide. Certainly in the absence of such proof, the plaintiff has failed to make out a case for the jury. Kerner v. R. R., 170 N.C. 94, 86 S.E. 998; Ice Co. v. R. R., 126 N.C. 797.\n\u201cThe burden rested upon the plaintiff to establish by competent evidence two facts alleged in her complaint: first, that the defendant negligently permitted combustible matter to accumulate on its right of way, and, second, that the defendant communicated fire from its engine to its foul right of way, which fire was thence communicated to the lands of the plaintiff.\u201d Maguire v. R. R., 154 N.C. 384, 70 S.E. 737. It is not sufficient for the plaintiff to prove that the fire might have started from a fusee thrown out by an employee of defendant, starting a fire on a foul right of way which spread to her land; she must show these facts by reasonable affirmative evidence. Wilson v. Lumber Co., 194 N.C. 374, 139 S.E. 760; McBee v. R. R., 171 N.C. 111, 87 S.E. 985; 22 A.J. 653; Anno. 42 A.L.R. 795 (N. C. cases p. 796); ibid., pp. 799, 820.\nHow was the fire started and by whom? Where did it originate? These are questions raised by the pleadings and the testimony offered. The answers are left to speculation or surmise. Moore v. R. R., 173 N.C. 311, 92 S.E. 1; Fleming v. R. R., 236 N.C. 568, 73 S.E. 2d 544. For that reason the judgment entered must be\nAffirmed.", "type": "majority", "author": "Barnhill, J." } ], "attorneys": [ "Williams \u25a0& Williams for plaintiff appellant.", "W. T. Joyner and Ward \u2022& Bennett for defendant appellee." ], "corrections": "", "head_matter": "SADIE BINGHAM GRINNAN, Trustee, v. SOUTHERN RAILWAY COMPANY.\n(Filed 21 October, 1953.)\n1. Railroads \u00a7 7 \u2014 Evidence held insufficient to show that fire adjacent to right of way resulted from act of defendant.\nPlaintiff\u2019s evidence tended to show that when her caretaker reached the scene woods on a hill adjacent to the right of way were burning and that fire was still burning at a fusee upon defendant\u2019s tracks. Plaintiff also offered evidence tending to show that employees of defendant customarily put out fusees at or near the place in question whenever trains stopped there, as signals to operators of other trains. Held: In the absence of evidence that defendant\u2019s employees put out a fusee within the burned area at or near the time the fire was discovered or that a train of defendant stopped there at any time on the morning prior to the fire, defendant\u2019s motion to nonsuit plaintiff\u2019s action to recover the damages to her lands from the fire was properly sustained.\n2. Same\u2014\nIn an action against a railroad company to recover for damages to plaintiff\u2019s lands from a fire, plaintiff must show by reasonably affirmative evidence that the fire started on a foul right of way by act of defendant, and that the fire spread to plaintiff\u2019s lands.\nAppeal by plaintiff from Sink, J., July Term, 1953, BuNCOMbe. Affirmed.\nCivil action in tort to recover compensation for damage to real property caused by fire.\nPlaintiff, as trustee of an active trust, owns a large tract of land adjoining the city limits of Asheville, north of the railroad bridge across the French Broad Eiver, adjacent to the western boundary of defendant\u2019s right of way and known as the Bingham School property.\nThe defendant operates trains over its lines from Asheville to Marshall and from Asheville to Knoxville. The Asheville-Knoxville line runs through plaintiff\u2019s property, and the junction of the two lines is a short distance to the south thereof. Trains from Knoxville customarily stop at the junction and put out lighted fusees before entering the railroad yards as signals to operators of other trains. Some fusees put out prior to the fire complained of had started small fires on defendant\u2019s right of way which had not spread to adjacent property. The remains of used fusees were scattered along defendant\u2019s tracks where lighted fusees were customarily placed. Some had not burned.\nOn 6 November 1952, one Hagan, plaintiff\u2019s caretaker, was notified between 1:00 and 9 :00 a.m. there was a fire on the property. After trying to get help and telephoning to the Asheville Fire Department and the forester, which consumed about one-half hour, he went down to the railroad where he found a freshly burned fusee about three feet from the railroad track. \u201cThe fire was still burning close around the fusee when I arrived . . . The burned space widened out as it left from the fusee, it spread out from it leading away from it and there was still plenty of grass at different places around the track, but it spread away from the fusee and hit the hill.\u201d At that time the fire had \u201chit the hill\u201d some distance away and \u201cwas going west up the hill.\u201d It was so far to the west it could not be controlled. \u201cThe biggest part . . . was going west . . . pretty far up the hill.\u201d \u201cIt was just a huge fire, went halfway to the tops and burned them almost up. The flames went 40 feet from the ground in some sections . . .\u201d It had burned over about one-half acre when Hagan reached the scene. \u201cWhen I got there, it was bounding up pretty high ... It widened from the tracks.\u201d\nWhen Hagan arrived fire was burning \u201cpretty close\u201d to the fusee, and some was \u201ca pretty good distance\u201d up the hill. The burned area at the fusee was not very wide. The fire was still burning and there was \u201ca lot of dead grass all the way to the tracks.\u201d \u201cIt was burning two ways. It was burning like it was going across the hollow to the right . . . and spreading up the hill.\u201d\nPlaintiff offered evidence tending to show there was \u201cplenty\u201d of high, dead grass, weeds, bushes, and other combustible matter on defendant\u2019s right of way. The grass and brush that had not burned was \u201cgrowed all the way to the chat at the end of the track . . .\u201d \u201c. . . it was grown up into the chat, 6 to 12 inches high. It was very thick.\u201d\nPlaintiff likewise offered evidence tending to show that employees of defendant put fusees out near the burned area and tendered testimony tending to show that it was customary for trainmen to put out a fusee whenever a train stopped there.\nAt the conclusion of plaintiff\u2019s evidence in chief, the court, on motion of defendant, entered judgment of involuntary nonsuit and plaintiff appealed.\nWilliams \u25a0& Williams for plaintiff appellant.\nW. T. Joyner and Ward \u2022& Bennett for defendant appellee." }, "file_name": "0432-01", "first_page_order": 482, "last_page_order": 485 }