Cheek v. . Lumber Co. , 134 N.C. 225 ( 1904 )

This action is prosecuted by the plaintiff to recover damages alleged to have been sustained by the negligence of the defendant, in that it negligently and carelessly failed and neglected to equip its engine with spark arresters and other appliances to prevent the escape of fire and sparks when passing over the lands of the plaintiff, whereby much valuable timber standing on her land was destroyed, etc. The defendant denied the material allegations in the complaint, and thereupon the following issue was submitted to the jury: "Did the defendant negligently and wrongfully burn the plaintiff's timber, as alleged in the complaint?"

After the introduction of other testimony, the plaintiff offered to read in evidence a portion of the fourth paragraph of defendant's answer, to-wit. "That it admits the engine used by it for hauling logs was not equipped with a spark arrester."

The defendant objected, and to the court's ruling sustaining the objection the plaintiff excepted. The plaintiff thereupon introduced the whole of said paragraph, to-wit, "That the (227) fourth section thereof is untrue, save and except that it admits that the engine used by it in hauling logs was not equipped with a spark arrester; but it avers there was no necessity therefor, and the failure to so equip it was not negligence."

Without passing upon his Honor's ruling, we have no hesitation in coming to the conclusion that the exception was waived by the action of the plaintiff in reading to the jury the entire paragraph of the answer. If the plaintiff had relied upon the exception, and thereby lost the benefit of the admission in the answer, she would be in a position to have this Court decide whether there was reversible error in the ruling of his Honor. She abandoned the exception, and by reading the entire paragraph got the benefit of the admission. The learned counsel, in their brief, complain that the portion of the paragraph which they desired to exclude "was a statement of bad law, which could not explain or modify the admission."His Honor so instructed the jury. We cannot perceive how the plaintiff has any cause to complain in this respect.

The plaintiff proposed to show by the president and general manager of the defendant corporation that the same engine, one year after the fire in question, at another place, some miles distant from the defendant's farm, set fire to timber. The exclusion of this evidence forms the basis of the plaintiff's second exception. We concur in his Honor's ruling. The proposed evidence involved too many collateral inquiries — was calculated to mislead and confuse the jury in respect to the fact in issue. It is often difficult to accurately trace the line which separates evidence which is relevant — that is, has a visible, reasonable connection with the fact in issue — from that which is too remote and constitutes no evidence. The fact that the engine which was charged with the injury to the plaintiff's timber, twelve months after, and at another place, fired timber, (228) gave no aid to the jury in answering the issue, unless it was followed by a mass of other testimony showing similarity of conditions, etc.

Pearson, C. J., in Bottoms v. Kent, 48 N.C. 154, thus states the rule: "As a condition precedent to the admissibility of evidence, the law requires an open and visible connection between the principal and the evidentiary facts. This does not mean a necessary connection which would exclude all presumptive evidence, but such as is reasonable and not latent or conjectural." In S. v. Vinson, 63 N.C. 335, Rodman, J., says: "If the fact offered to be proved be equally consistent with the existence or non-existence of the fact sought to be inferred from it, the evidence can furnish no presumption either way, and should not be admitted." S. v.Brantley, 84 N.C. 766; Grant v. R. R., 108 N.C. 462; Ice Co. v. R. R.,126 N.C. 797.

The president and general manager of the defendant was permitted to testify, after objection, that his engine had no spark arrester."It was a cog-gear locomotive engine — kind usually used on such roads; that it at one time had a spark arrester; did not steam well, and it was taken off. The results were poor; could not get any steam; took it off; got good results; steamed all right." Plaintiff's counsel insist that this testimony was incompetent, and excepted to its admission. We can perceive no valid objection to it, and, in the light of his Honor's charge, it was entirely harmless. The defendant was certainly entitled to describe to the jury the construction, equipment and operation of its engine. The value of the testimony, as relieving the defendant of liability, was for the jury, under proper instructions from the court. The exception cannot be sustained.

Plaintiff introduced a witness who testified that the president and general manager of defendant said to him, in response to the question, "Did your engine set it afire?" "Yes, my engine set it afire, but fire had been there before." There (229) was other testimony tending to show that defendant's engine set fire to the timber. No eye-witness testified to the fact. The defendant introduced testimony tending to show that the timber was set on fire from other causes. His Honor instructed the jury that, although they should find that the engineer of the defendant told the plaintiff's witnesses that the defendant's engine set fire to the plaintiff's timber, that did not necessarily render the defendant liable, unless the jury find that the defendant's engine did actually set fire to the timber, but that the jury were at liberty to consider all the evidence, the facts and circumstances testified to by the witnesses, and find whether defendant's engine did actually set fire to plaintiff's land or woods, or not. Plaintiff excepted. It was not claimed that the defendant's general manager saw the engine set fire to the timber. The plaintiff insists that, if the jury believe that the president made the admission, the burden was shifted, and put upon the defendant the labor of showing that the fire was not the result of negligence. We cannot concur in this view. The testimony, if believed, did not estop the defendant from showing that its general manager was mistaken in saying that the engine set fire to the timber. The admission does not come within the rule which binds a party to a "solemn admission" made in the pleading. It may well be that the general manager, from the facts and circumstances known to him, honestly believed that the engine set fire to the timber. This was competent testimony, but did not work an estoppel upon the defendant to show the fact to be otherwise. In the light of his Honor's charge, it is evident that the jury found that the defendant's engine did not set fire to the timber. His Honor told the jury that, if they found the defendant's engine was not equipped with a spark arrester, and that the fire was caused by the failure of the defendant to equip his engine with a spark, (230) arrester they should answer the first issue "Yes." This was equivalent to telling the jury that the failure to have a spark arrester was negligence, and that if by reason thereof the plaintiff sustained the injury complained of, the defendant was liable. This instruction was strictly in accordance with the rulings of this Court. It being conceded that the engine had no spark arrester, the only question under his Honor's instructions for the jury to answer was whether the engine set fire to the timber and the failure to have the spark arrester was the proximate cause thereof. These questions were peculiarly within the province of the jury. We concur in the plaintiff's contention that the failure to furnish the engine with a spark arrester was negligence, and his Honor so instructed the jury, leaving to them the question whether the engine set fire to the timber, and whether the failure to have a spark arrester was the cause thereof. The proposition maintained by the plaintiff is, that the defendant's engine set fire to her timber; that it had no spark arrester; that the failure to have a spark arrester was negligenceper se. If we concede this proposition, the plaintiff must, before she can maintain her action, show that the failure to have a spark arrester was the proximate cause of the fire. "Negligence, no matter in what it may consist, cannot result in a right of action, unless it is the proximate cause of the injury complained of by the plaintiff." Elliott on Railroads, sec. 711; Henderson v. Traction Co.,132 N.C. 779; Butts v. R. R., 133 N.C. 82; Edwards v. R. R., 129 N.C. 78.

We think that his Honor's instructions fully cover every phase of the controversy, and that plaintiff's exceptions cannot be sustained. Upon a careful examination of the entire record, we find no reversible error, and the judgment must be

Affirmed.