Gainey v. Rockingham R. Co.

68 S.E.2d 780 (1952)

235 N.C. 114

GAINEY et ux. v. ROCKINGHAM R. CO.

No. 606.

Supreme Court of North Carolina.

February 1, 1952.

*782 Jones & Jones, Rockingham, for plaintiffs appellees.

Bynum & Bynum, Rockingham, and Mc-Lean & Stacy, Lumberton, for defendant appellant.

VALENTINE, Justice.

This appeal challenges the correctness of the court's action in overruling defendant's demurrer to the evidence and motion for judgment as of nonsuit.

Plaintiffs' evidence was abundantly sufficient to raise the reasonable inference that defendant had negligently allowed combustible material to gather and remain in large quantities on its right of way near its track in the vicinity of plaintiffs' property and that this inflammable material was ignited by sparks, coals and embers emitted from defendant's engine. This evidence makes out a case for the plaintiffs and was correctly submitted to the jury under proper instructions of the court and under the rules established by many decisions of this Court. Moore v. Wilmington & W. R. R. Co., 124 N.C. 338, 32 S.E. 710; Williams v. Atlantic Coast Line R. R. Co., 140 N.C. 623, 53 S.E. 448; Knott v. Cape Fear & N. R. R. Co., 142 N.C. 238, 55 S.E. 150; McRainey v. Virginia & C. S. R. R. Co., 168 N.C. 570, 84 S.E. 851; Broadfoot v. Atlantic Coast Line R. R. Co., 174 N.C. 410, 93 S.E. 932; Betts v. Southern R. R., 230 N.C. 609, 55 S.E.2d 76.

Our duty here is limited to the single question of determining whether there is any evidence for the jury to consider and upon which it could properly base a verdict. This requires an interpretation of the plaintiffs' evidence in the light most favorable to them. Every reasonable inference and intendment arising from the evidence must be resolved in favor of the plaintiffs before a nonsuit is in order. Henderson v. Atlantic Coast Line R. R. Co., 159 N.C. 581, 75 S.E. 1092; Powell v. Lloyd, 234 N.C. 481, 67 S.E.2d 664.

Whether the fire originated from sparks emitted from the smoke stack or from the live coals or clinkers dropped or thrown from the fire box is of no consequence. If the defendant permitted its right of way to become and remain in a dangerous condition and if the combustible material on its right of way caught fire from sparks or live clinkers blown, thrown or dropped from defendant's engine and if the fire so ignited burned through the inflammable material on defendant's right of way and from there spread to other combustible material so that it passed or was blown to and burned the plaintiffs' residence, the defendant was guilty of such negligence as renders it liable for the damage sustained by plaintiffs. Knott v. Cape Fear Aycock v. Raleigh & A. A. L. R. R. Co., 89 N.C. 321; Phillips v. Durham & C. R. R. Co., 138 N.C. 12, 50 S.E. 462; Simpson v. Enfield Lumber Co., 133 N.C. 95, 45 S.E. 469; Betts v. Southern R. R., supra.

The evidence of the plaintiffs tended to show negligence in that the combustible material which defendant had allowed to accumulate and remain on its right of way was ignited by the live embers, coals and cinders dropped from defendant's locomotive, which fire spread directly to and destroyed plaintiffs' residence and its contents. The weight and sufficiency of this evidence as well as the credibility of the witnesses are questions exclusively within the province of the jury. In re Will of Morrow, 234 N.C. 365, 67 S.E.2d 279.

Measuring the evidence of plaintiffs by the rules laid down by the court, we reach the conclusion that plaintiffs' evidence made out a case for the jury and the motion for judgment as of nonsuit was properly overruled. The other exceptions are formal and require no discussion.

In the trial of the case in the court below, we find

No error.