Hardy v. Hines Bros. Lumber
Hardy v. Hines Bros. Lumber
Opinion of the Court
These actions were brought by W. B. Hardy and B. T. Hardy against the defendant to recover damages for negligently burning their timber. The- allegations as to the burning, they being substantially the same in the two cases, are that the defendant’s locomotive engine set fire to combustible material on its track and right of way, which--was covered with dry leaves, pine straw,-and woods mould, and- in a very foul condition, and that the fire spread to the adjoining land, burning over a- considerable area. That an effort was made -to extinguish the flames, plaintiff taking some part in it, but that some
The lire, as testified by at least two of plaintiffs’ witnesses, L. O. Tumage and W. 0. Carlyle, was first seen on the track and right of way, just after the train had passed, and there was evidence that the smokestack of the engine was defectively constructed, so that large and live sparks could be emitted therefrom, and that the same engine had before caused fires along the track. Tt is true that there was evidence to the effect that the engine was properly constructed and supplied with an efficient spark arrester and a good ash-pan, save when bad wood was used, but the facts we have stated were fully deducible from some of the evidence, by the' jury, and they seem, under a perfectly correct charge, to have accepted them as proven to their satisfaction.
It cannot be disputed that there was evidence sufficient to establish the charge of negligence in either of two aspects, a defective engine and a foul and dangerous track and right of way, either of which would constitute actionable negligence if it caused the fire in the beginning and was the proximate cause of the damage.
"We said recently in Kornegay v. R. R., 154 N. C., 389: “When it is shown that the fire originated from sparks which came from the defendant’s engine, the plaintiff makes out a prima facie case, entitling him to have the issue as to negligence submitted to the jury, and they were justified in finding negligence unless they were satisfied, upon all the evidence in the case, that, in fact, there was no negligence, but that the defendant’s engine was equipped with a proper spark arrester (or ash-pan, and otherwise to prevent the emission of sparks or fire) and had been operated in a careful or prudent manner.” This was but a summary of what had been so often decided in former cases. Williams v. R. R., 140 N. C., 623; Craft v. Tim
We early stated the proposition, wbicb seems to be a clear logical syllogism, that “When the plaintiff shows damage resulting from the act of the defendant, which act, with the exercise of proper care, does not ordinarily produce damage, he makes out a prima facie case of negligence which cannot be repelled but by proof of care, or some extraordinary accident which makes care useless.” Ellis v. R. R., 24 N. C., 138; Chaffin v. Lawrence, 50 N. C., 179; Aycock v. R. R., 89 N. C., 321; Haynes v. Gas Co., 114 N. C., 203, and more recently in Mizzell v. Manufacturing Co., 159 N. C., 265.
The rule may.be justified, not only on the ground that negligence is a fair and reasonable deduction from the fact of casting the spark from the engine, as ordinarily, when care is exercised, such a result does not follow, but for the further reason that the proof of care can more easily be produced by the defendant, who has control of the engine and should know its true condition, than by the plaintiff, who may be ignorant of it. Aycock v. R. R., supra. We do not say that there is no exception to or qualification of the rule, but it applies in this ease, and that is sufficient for our purpose.
Referring to this subject in Deppe v. R. R., 152 N. C., at p. 82, Justice Manning thus states the rule applicable to the state of facts here presented: “In considering the origin of the fire, it is immaterial whether the fire caught on or off the right of way. The place of ignition is important on the second question. The second question presented is, Gould the jury find from this primal fact that the plaintiff’s property was negligently burned by the defendant? In Shearman and Redfield on Negligence, sec. 676, the learned authors say: ‘The decided weight of authority and of reason is in favor of holding that, the origin of the fire being fixed upon the railroad company, it is presumptively chargeable with negligence, and must assume the burden of proving that it had used all those precautions for confining sparks or cinders (as the case may be) which have already been mentioned as necessary.’ ” He adds that this is
But defendant contends tbat if tbe fire was negligently caused by tbe engine dropping a live spark from tbe smokestack, or a live eiüder from tbe ash-pan, it was apparently extinguished after burning over intervening land for some distance from its track, and while it smoldered in tbe stumps, and perhaps in other places, it was several days before it broke, out-again and destroyed tbe plaintiff’s timber. The evidence is, tbat on 12 June, 1911, and at first, it burned timber on land next to tbe railroad track before it reached tbe plaintiffs’ timber on tbat day, a small portion of wbicb was consumed, and tbat on 23 June, 1911, it “sprang up” again, and spread to plaintiffs’ other timber. Tbe evidence also discloses • tbe fact tbat plaintiffs assisted in tbe attempt to put out tbe fire, but it turns out tbat tbe combined efforts of all tbe neighbors failed to extinguish it. But it is argued from these facts tbat tbe fire tbat destroyed tbe plaintiffs’ woods on 23 June, 1911, was not proximately caused by tbat wbicb started on tbe defendant’s right of way 12 June, 1911. Neither tbe distance traversed by the- fire, tbougb lands of other parties intervened, nor tbe time elapsing between tbe initial fire and tbe final conflagration wbicb destroyed tbe plaintiffs’ property, is conclusive against tbe exist
"What was said by Justice Strong in tbe Kellogg case has generally been approved and adopted by tbe courts as an apt statement and explanation of tbe rule. Ramsbottom v. R. R., 138 N. C., 39.
Judge Cooley has given us three propositions which further illustrate tbe application of tbe general rule, and in which be states it a little differently, but with bis usual accuracy:
(1) In tbe case of any distinct legal wrong, which in itself constitutes an invasion of tbe right of another, tbe law will presume tbat some damage follows as a natural, necessary, and proximate result. Here tbe wrong itself fixes tbe right of action; we need not go further to show a right of recovery, though tbe extent of recovery may depend upon tbe evidence.
(2) When tbe act or omission, complained of is not in itself a distinct wrong, and can only become a wrong to any particular individual through injurious consequences resulting therefrom, this consequence must not only be shown, but it must be so connected by averment and evidence with tbe act or omission as to appear to bave resulted therefrom according to tbe ordinary course of events and as a proximate result of a sufficient cause.
(3) If tbe original act was wrongful, and would naturally, according to tbe ordinary course of events, prove injurious 'to some other person or persons, and does actually result in injury through tbe intervention of other causes which are not wrongful, tbe injury shall be referred to tbe wrongful cause, passing by those which were innocent. But if tbe original wrong only becomes injurious in consequence of tbe intervention of some distinct wrongful act or omission by' another, tbe injury shall be imputed to tbe last wrong as tbe proximate cause, and not to tbat which was more remote. Cooley on Torts (Ed. of 1879), •p. 69.
We may now the more readily answer the objection of the defendant to the plaintiffs’ recovery, based upon the absence of any proximate cause for the last fire which can be referred to its original negligence. The intervention of time or distance between the two fires, as when seen, is not fatal to plaintiff, but was proper to be considered by the jury on the question of proximate cause. Phillips v. R. R., 138 N. C., 12; Black v. R. R., 115 N. C., 667; Poeppers v. R. R., 67 Mo., 715; R. R. v. McBride, 54 Kansas, 172. If the continuity in sequence of the several events was not broken, and the causes operated together and in connection with each other, either successively or con-curringly, each being a contributing cause to the final result, as the jury, by their verdict, evidently found to be the fact,- the defendant’s act in starting the fire would, in law, be said to have proximately caused the damage to the plaintiffs’ lands, and a cause of actionable negligence would then be presented. The court charged the jury, in substance, that the burden was on the plaintiff to satisfy .them that the same fire which was started
But the defendant’s counsel rely on the case of Doggett v. R. R., 78 N. C., 305, and it must be admitted that, at first blush, there is a seemingly close resemblance between the two eases; but upon further comparison, it is found to be a similarity more apparent than real, and, besides, a critical examination of that ease will discover that the two cases are essentially different. -In this case the court instructed that they must not answer the issue in favor of defendant unless they were satisfied that the fire of the 12th was 'the same that burned the plaintiffs’ woods on the 23d, it- being one continuous fire from the start. There was evidence to support this charge, for the jury might well have inferred from the testimony of the witnesses, Lindsay Brown and others, that the fire had never been extinguished, but continued to burn slowly, or to smolder, until Friday, the 23d, when it reached plaintiffs’ trees and destroyed them. In the Doggett case the very learned Justice laid stress upon the negligence of the plaintiff, placing the burden upon him to show its absence, and also undertook to decide the question of plaintiff’s negligence as matter of law. ¥e know that, in both respects, the law of negligence has since undergone great change by statute and decisions of this Court. Again, in that case, it was said: “The second burning did not necessarily follow the first, because of the intervening arrest of the progress of the fire. But even supposing that the progress of the flames had been continuous, if there was any intervening negligence in the effort to extinguish the fire either by the intermediate owners of fences or by the neighbors who assembled
If the defendant wished to rely upon plaintiffs’ negligence, or desired any more definite instruction in regard to it, a specific request should have been made, based upon proper averment in the answer and upon the evidence. Simmons v. Davenport, 140 N. C. (Anno. Ed.), marg. p. 407, and eases cited in note.
Conceding only for the sake of argument that the judge’s charge was somewhat general in its terms, it was in itself correct, and if the defendant thought that some other view of the matter should be presented, 6r that it should be more pointed or addressed more closely to the particular facts, he should have made his want'known to the court in the usual way. So we said, by Justice HoTse, in the apposite case of Gay v. Mitchell, 146 N. C., 509, when the question of proximate cause was likewise involved. The court might well have asked the jury in our case to inquire and find whether, in the exercise of care, the defendant could reasonably have foreseen that the injury to plaintiffs’ property would be the natural and probable consequence of its negligence in dropping sparks in the right of way, and explained more fully the rule of proximate cause, in any view of the evidence presenting the question; but we eanñot say that its omission to give the charge is positive or reversible error, in the absence of any special request to do so. The jury have evidently found that the fire was not extinguished, but continued in its progress, though very slowly at times, until the final catastrophe. It may be true that plaintiffs were under the duty to protect.their property against a seen or known and threatened danger, and to prevent or minimize the danger by the use of proper care (2 Sh. and Eedf. on Neg. (5 Ed.), sec.
In this-case the jury must have found that it was one and the same fire throughout its various stages, there being no complete cessation of it. With this fact before us, there does not
~We have declined to enter upon tbe wide field of investigation which would bave opened up to us if we bad attempted a critical review of tbe doctrine of proximate' and remote cause, as it is discussed in cases without number, being admonished against tbe futility of such a course by tbe words of a wise judge when discussing a similar question: “It would be an unprofitable labor to enter into an examination of tbe cases. If we could deduce from them tbe best possible expression of tbe rule, it would remain after all to decide each case largely upon tbe special facts belonging to it, and often upon tbe very nicest discriminations. One of tbe most valuable of tbe criteria furnished us by these authorities is to ascertain whether any new cause has intervened between tbe fact accomplished and .the alleged cause. If a new force or power has intervened of itself, sufficient to stand as tbe cause of tbe misfortune, tbe other must be considered as too remote.” Insurance Co. v. Tweed, 74 U. S., 44. For tbe reason given, we do not regard tbe case of Doggett v. R. R. as controlling tbe decision in this case.
Tbe question raised, as to whether there was any evidence that defendant owned a right of way, and if so, as to its extent, is answered by tbe language of tbe witnesses, who testified, in so many words, that tbe fire was seen on tbe right of way and track, which implies, necessarily, that there was a right of way, and, nothing else appearing, this is some evidence of tbe fact for tbe jury. A similar question was decided at this term. Lumber Co. v. Brown.
We find no error in tbe record.
No error.
Reference
- Full Case Name
- W. B. HARDY v. HINES BROTHERS LUMBER COMPANY
- Cited By
- 17 cases
- Status
- Published