Grinnan v. Southern Railway Co.

Barnhill, J.

In view of plaintiff’s evidence tending to show that the fire had burned over a half acre of plaintiff’s land when her caretaker arrived, “and was bounding up pretty high,” and yet it had not burned through the three feet of thick, high grass and weeds between the freshly burned fusee and the “chat” 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.

We 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’s 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’s 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.

Proof 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 — as in case of a train discharging live sparks onto a foul right of way — 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.

“The 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.” 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.

How 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

Affirmed.